Harris v. New York (1971)

Harris v. New York (1971)

401 U.S. 222

The state of New York charged Viven Harris in a two-count indictment of twice selling heroin to an undercover police officer. At Harris’s jury trial, the officer was the state’s chief witness and testified as to the details of the two sales. Harris took the stand in his own defense. Although he denied making a sale on January 4, 1966, he admitted making a sale of contents of a glassine bag to the officer on January 6 of that year. He claimed, however, that the bag contained baking powder and was part of a scheme to defraud the purchaser. On cross-examination Harris was asked whether he had made specified statements to the police immediately following his arrest on January 7—statements that contradicted his direct testimony at trial. He responded that  he could not remember either the questions or the answers recited by the prosecutor. In his instructions to the jury, the trial judge declared that statements attributed to Harris could be considered only in passing judgment on his credibility as a witness and not as evidence of guilt. The jury convicted Harris of the second count of the indictment, and the New York Court of Appeals affirmed. The Supreme Court granted certiorari.

Opinion of the Court: Burger, Blackmun, Harlan, Stewart, White.

Dissent: Black.

Dissenting opinion: Brennan, Douglas, Marshall.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted the writ in this case to consider petitioner’s claim that a statement made by him to police under circumstances rendering it inadmissible to establish the prosecution’s case in chief under Miranda v. Arizona . . . (1966), may not be used to impeach his credibility.

Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.

In Walder v. United States . .  (1954), the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes.

“It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment. “[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.”

It is true that Walder was impeached as to collateral matters included in his direct examination, whereas petitioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a difference in principle that warrants a result different from that reached by the Court in Walder. Petitioner’s testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence 111 question is made unavailable to the prosecution in its case in chief.

Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could

hardly be contended that the conflict could not be laid before the jury by way of cross-examination

and impeachment. …

The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.

Affirmed.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.

It is conceded that the question-and-answer statement used to impeach petitioner’s direct testimony was, under Miranda… constitutionally inadmissible as part of the State’s direct case against petitioner. I think that the Constitution also denied the State the use of the statement on cross-examination to impeach the credibility of petitioner’s testimony given in his own defense. The decision in Walder… is not, as the Court today holds, dispositive to the contrary. Rather,

that case supports my conclusion. . . .

Walder v. United States was not a case where tainted evidence was used to impeach an accused’s direct testimony on matters directly related to the case against him. In Walder the evidence was used to impeach the accused’s testimony on matters collateral to the crime charged. Walder had been indicted in 1950 for purchasing and possessing heroin. When his motion to suppress use of the narcotics as illegally seized was granted, the Government dismissed the prosecution. Two years later Walder was indicted for another narcotics violation completely unrelated to the 1950 one. Testifying in his own defense, he said on direct examination that he had never in his life possessed narcotics. On cross-examination he denied that law enforcement officers had seized narcotics from his home two years earlier. The Government was then permitted to introduce the testimony of one of the officers involved in the 1950 seizure, that when he had raided Walder’s home at that time he had seized narcotics there. The Court held that on facts where “the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics,”…the exclusionary rule…would not extend to bar the Government from rebutting this testimony with evidence although tainted, that petitioner had in fact possessed narcotics two years before. . . .

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

While Walder did not identify the constitutional specifics that guarantee “a defendant the fullest opportunity to meet the accusation against him . . . [and permit him to] be free to deny all the elements of the case against him,” in my view Miranda…is fulfilled only when an accused is guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will.” Griffin v. California (1965) . . . held that comment by the prosecution upon the accused’s failure to take the stand or a court instruction that such silence is evidence of guilt is impermissible because it “fetters” that choice— “[i]t cuts down on the privilege by making its assertion costly.” . . . For precisely the same reason the constitutional guarantee forbids the prosecution from using a tainted statement to the accused who takes the stand: The prosecution’s use of the tainted statement “cuts down on the privilege by making its assertion costly.”… Thus, the accused is denied an “unfettered choice when the decision whether to take the stand is burdened by the risk that an illegally obtained prior statement may be introduced to impeach his direct testimony denying complicit in the crime charged against him….

The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that though any statement they obtain in violation of Miranda cannot be used on the State’s direct case, it may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution. I dissent.