Gilbert v. California (388 U.S. 263)/Concurrence-dissent Black

Mr. Justice BLACK, concurring in part and dissenting in part.

Petitioner was convicted of robbery and murder partially on the basis of handwriting samples he had given to the police while he was in custody without counsel and partially on evidence that he had been identified by eyewitnesses at a lineup identification ceremony held by California officers in a Los Angeles auditorium without notice to his counsel. The Court's opinion shows that the officers took Gilbert to the auditorium while he was a prisoner, formed a lineup of Gilbert and other persons, required each one to step forward, asked them certain questions, and required them to repeat certain phrases, while eyewitnesses to this and other crimes looked at them in efforts to identify them as the criminals. At his trial, Gilbert objected to the handwriting samples and to the identification testimony given by witnesses who saw him at the auditorium lineup on the ground that the admission of this evidence would violate his Fifth Amendment privilege against self-incrimination and Sixth Amendment right to counsel. It is well-established now that the Fourteenth Amendment makes both the Self-Incrimination Clause of the Fifth Amendment and the Right to Counsel Clause of the Sixth Amendment obligatory on the States. See, e.g., Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

(a) Relying on Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the Court rejects Gilbert's Fifth Amendment contention as to both the handwriting exemplars and the lineup identification. I dissent from that holding. For reasons set out in my separate opinion in United States v. Wade, 388 U.S., p. 243, 87 S.Ct., p. 1941, as well as in my dissent to Schmerber, 384 U.S., at 773, 86 S.Ct., at 1837, I think that case wholly unjustifiably detracts from the protection against compelled self-incrimination the Fifth Amendment was designed to afford. It rests on the ground that compelling a suspect to submit to or engage in conduct the sole purpose of which is to supply evidence against himself nonetheless does not compel him tobe a witness against himself. Compelling a suspect or an accused to be 'the source of 'real or physical evidence' * *  * ,' so says Schmerber, 384 U.S., at 764, 86 S.Ct., at 1832, is not compelling him to be a witness against himself. Such an artificial distinction between things that are in reality the same is in my judgment wholly out of line with the liberal construction which should always be given to the Bill of Rights. See Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.

(b) The Court rejects Gilbert's right-to-counsel contention in connection with the handwriting exemplars on the ground that the taking of the exemplars 'was not a 'critical' stage of the criminal proceedings entitling petitioner to the assistance of counsel.' In all reality, however, it was one of the most 'critical' stages of the government proceedings that ended in Gilbert's conviction. As to both the State's case and Gilbert's defense, the handwriting exemplars were just as important as the lineup and perhaps more so, for handwriting analysis, being, as the Court notes, 'scientific' and 'systematized,' United States v. Wade, 388 U.S., at 227, 87 S.Ct., at 1932, may carry much more weight with the jury than any kind of lineup identification. The Court, however, suggests that absence of counsel when handwriting exemplars are obtained will not impair the right of cross-examination at trial. But just as nothing said in our previous opinions 'links the right to counsel only to protection of Fifth Amendment rights,' United States v. Wade, ante, 388 U.S., at 226, 87 S.Ct., at 1932, nothing has been said which justifies linking the right to counsel only to the protection of other Sixth Amendment rights. And there is nothing in the Constitution to justify considering the right to counsel as a secondclass, subsidiary right which attaches only when the Court deems other specific rights in jeopardy. The real basis for the Court's holding that the stage of obtaining hadwriting exemplars is not 'critical,' is its statement that 'there is minimal risk that the absence of counsel might derogate from his right to a fair trial.' The Court considers the 'right to a fair trial' to be the overriding 'aim of the right to counsel,' United States v. Wade, at 226, 87 S.Ct., at 1932, and somehow believes that this Court has the power to balance away the constitutional guarantee of right to counsel when the Court believes it unnecessary to provide what the Court considers a 'fair trial.' But I think this Court lacks constitutional power thus to balance away a defendant's absolute right to counsel which the Sixth and Fourteenth Amendments guarantee him. The Framers did not declare in the Sixth Amendment that a defendant is entitled to a 'fair trial,' nor that he is entitled to counsel on the condition that this Court thinks there is more than a 'minimal risk' that without a lawyer his trial will be 'unfair.' The Sixth Amendment settled that a trial without a lawyer is constitutionally unfair, unless the courtcreated balancing formula has somehow changed it. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, I thought finally established the right of an accused to counsel without balancing of any kind.

The Court's holding here illustrates the danger to Bill of Rights guarantees in the use of words like a 'fair trial' to take the place of the clearly specified safeguards of the Constitution. I think it far safer for constitutional rights for this Court to adhere to constitutional language like 'the accused shall * *  * have the Assistance of Counsel for his defence' instead of substituting the words not mentioned, 'the accused shall have the assistance of counsel only if the Supreme Court thinks it necessary to assure a fair trial.' In my judgment the guarantees of the Constitution with its Bill of Rights provide the kind of 'fair trial' the Framers sought to protect. Gilbert was entitled to have the 'assst ance of counsel' when he was forced to supply evidence for the Government to use against him at his trial. I would reverse the case for this reason also.

I agree with the Court that Gilbert's case should not be reversed for state error in admitting the pretrial statements of an accomplice which referred to Gilbert. But instead of squarely rejecting petitioner's reliance on the dissent in Delli Paoli v. United States, 352 U.S. 232, 246, 77 S.Ct. 294, 1 L.Ed.2d 278, the Court avoids the issue by pointing to the fact that the California Supreme Court, even assuming the error to be a federal constitutional one, applied a harmless-error test which measures up to the one we subsequently enunciated in Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. And the Court then goes on to suggest that the California Supreme Court may desire to reconsider whether that is so upon remand.

I think the Court should clearly indicate that neither Delli Paoli nor Chapman has any relevance here. Delli Paoli rested on the admissibility of evidence in federal, not state, courts. The introduction of evidence in state courts is exclusively governed by state law unless its introduction would violate some federal constitutional provision and there is no such federal provision here. See Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. That being so, any error in admitting the accomplice's pretrial statements is only an error of state law, and Chapman, providing a federal constitutional harmless-error rule, has absolutely no relevance here. Instead of looking at the harmless-error test applied by the California Supreme Court in order to ascertain whether it comports with Chapman, I would make it clear that this Court is leaving to the States their unbridled power to control their own state courts in the absence of conflicting federal constitutional provisions.

One witness who identified Gilbert at the guilt stage of his trial and eight witnesses who identified him at the penalty stage testified on direct examination that they had identified him in the auditorium lineup. I agree with the Court that the admission of this testimony was constitutional error and that Gilbert is entitled to a new trial unless the state courts, applying Chapman, conclude that this error was harmless. However, these witnesses also identified Gilbert in the courtroom and two other witnesses at the guilt stage identified him solely in the courtroom. As to these, the Court holds that '(t) he admission of the in-court identifications without first determining that they were not tainted by the illegal lineup * *  * was constitutional error.' I dissent from this holding in this case and in United States v. Wade, 388 U.S., p. 243, 87 S.Ct., p. 1941, for the reasons there given.

For the reasons here stated, I would vacate the judgment of the California Supreme Court and remand for consideration of whether the admission of the handwriting exemplars and the out-of-court lineup identification was harmless error.