United States v. Franklin

• Decision Date: 13 November 1964
• Docket Number: Crim. No. 321-62.
• Citation: 235 F. Supp. 338
• Parties: UNITED STATES of America v. William FRANKLIN.
• Court: U.S. District Court — District of Columbia

235 F. Supp. 338

UNITED STATES of America v. William FRANKLIN.

Crim. No. 321-62.

United States District Court District of Columbia.

November 13, 1964.

Joseph A. Lowther, Asst. U. S. Atty., for plaintiff.

Gary Bellow, Legal Aid Agency, New York City, for defendant.

YOUNGDAHL, District Judge.

During the presentation of its case, the government called certain witnesses who refused to testify on the ground that their answers might tend to be incriminating. The government then offered as evidence the prior trial testimony of those witnesses. The defendant's timely objection raised an issue which appears to be novel in view of the unique factual situation presented. Accordingly, the Court believes that the reasons for its rejection of the proffered testimony should be elaborated.

This case commenced in 1962 when the defendant and three others, Brooks, Carrell and Price, were indicted jointly for rape and robbery. The four were tried together before another judge of this court, and all were convicted of rape (the robbery dispositions are immaterial here). Franklin, Brooks and Price then appealed their convictions. The Court of Appeals affirmed as to Brooks and Price, but reversed Franklin's conviction because the lower court failed to instruct the jury that corroboration of identity was required in proof of rape, and corroboration was lacking as to Franklin. Franklin v. United States, 117 U.S.App. D.C. 331, 330 F.2d 205 (1964). The present case is Franklin's retrial on remand.

In the original trial, both Brooks and Carrell took the stand and gave exculpatory testimony.¹ Both were cross-examined by the government.² Upon this retrial of Franklin, the government called Brooks and Carrell as witnesses. Each was sworn and then invoked his privilege against self-incrimination.³ The government then sought to introduce their testimony from the original trial on the theory that they were unavailable witnesses who had previously given sworn testimony in the presence of the defendant who was then fully afforded his constitutional rights of confrontation and cross-examination. The defendant objected to the use of the prior statements of Brooks and Carrell on the grounds (1) that the statements were precluded by statute, 14 D.C.Code § 303 (Supp. III, 1964); and (2) that the defendant did not in fact have a full and proper opportunity to cross-examine these witnesses when they testified.

This is a difficult problem for the Court. A trial is a search for the truth. Generally, any evidence which will enhance that objective should be admitted to aid the trier of fact. However, it is axiomatic that this is not an absolute proposition. There are many other interests which society also seeks to further and protect which operate to exclude the use of certain evidence. There are also safeguards which have been developed and cherished throughout our legal tradition to insure that the testimony received will, in fact, reveal the truth. Most salient and respected of these safeguards is the right to cross-examine⁴ an adverse witness. The significance of this right is underscored in the law of evidence by the general rule that hearsay testimony is inadmissible. Again, however, this is not an absolute edict. In some of the myriad contingencies of legal life, considerations exist which, on balance, outweigh the objection that testimony is hearsay. Thus, another general rule permits the introduction of former testimony where a potential witness, is, for example, deceased, but where the party against whom the testimony is to be used had an opportunity to cross-examine that witness on the prior occasion.⁵ This rule embodies a balancing of conflicting factors in favor of accepting evidence spoken outside the presence of the trier of fact and without a present opportunity to cross-examine. Thus, the issue here is whether the prior statements of Brooks and Carrell are to be received as competent evidence in the circumstances of this case.

The initial consideration is an interpretation of the District of Columbia Code provision which ostensibly covers this precise issue. Section 303 of Title 14 (Supp. III, 1964) provides:

"When a party, after having testified at a time while he was competent to do so, dies or becomes incapable of testifying, his testimony may be given in evidence in any trial or hearing in relation to the same subject-matter between the same parties or their legal representatives, as the case may be; and in such a case the opposite party may testify in opposition thereto."

This statute poses at least two obstacles as a satisfactory solution to the unique problem before the Court.⁶ First, are Brooks and Carrell "parties" within the meaning of Section 303? Secondly, if so, does the phrase "or becomes incapable of testifying" contemplate a witness who is present in court, competent to testify, who actually takes the stand and is sworn, but who then invokes his privilege against self-incrimination? The Court's conclusion on the former question obviates a decision on the latter. By its clear language, the statute is applicable only where the testimony sought to be used was given by a party and where the later proceeding in which it is offered is "between the same parties or their legal representatives." Although Brooks and Carrell were parties when they testified, neither is a party at this trial, nor is Franklin in any sense their legal representative. In other words, as the Court reads the provision, to be admissible, the testimony must be from one who was a party in the original proceedings and who is a party (personally or by legal representative) to the proceedings in which the prior testimony is offered. This conclusion is fortified by the final clause of Section 303 which provides that after the prior testimony is received, "the opposite party may testify in opposition thereto."⁷

Therefore, Section 303 is not applicable on the facts of this case. However, this conclusion does not finally dispose of the Court's problem. It may still be argued that the statute is not exclusive and that the statements are admissible under the general common law rule of unavailable witnesses, referred to above. Whether Section 303 pre-empts all of the common law on the question of prior testimony; or rather, whether in certain cases prior testimony not within its scope is nevertheless admissible, is not necessary to determine here. The Court concludes that even if the common law rule admitting prior testimony has present vitality in this jurisdiction, it is not applicable on the facts of this case.

All of the cases relied on by the government to support the general rule of...