Uniform Evidence Rules

In November 1969, Paul Branzburg, a staff reporter for the Courier-Journal newspaper in Louisville, Kentucky, published an article describing his observations of two individuals synthesizing hashish from marijuana in Jefferson County. The article included a photograph and stated that Branzburg had promised not to reveal the identities of the two. He was subsequently subpoenaed by the Jefferson County grand jury and refused to identify the individuals he had observed. A state trial court ordered him to answer, and the Kentucky Court of Appeals denied his petition for relief. In January 1971, Branzburg published a second article detailing drug use in Frankfort, Kentucky, based on interviews with several dozen users over two weeks. He was subpoenaed by the Franklin County grand jury to testify about violations of drug statutes. The Court of Appeals denied the requested writs and rejected his First Amendment claim. This Court granted certiorari. In July 1970, Paul Pappas, a television newsman-photographer, was assigned to cover civil disorders in New Bedford, Massachusetts, involving the Black Panthers. He entered Panther headquarters under an agreement not to disclose what he saw or heard inside except for an anticipated police raid, which did not occur. Two months later, he was summoned before the Bristol County grand jury but refused to answer questions about his observations inside the headquarters. The Massachusetts Supreme Judicial Court held that he must appear and testify. In February 1970, Earl Caldwell, a New York Times reporter covering the Black Panther Party in San Francisco, received a subpoena to appear before a federal grand jury investigating possible violations of federal law by the group, including threats against the President. The District Court denied the motion to quash but issued a protective order. Caldwell refused to appear and was held in contempt. The Court of Appeals reversed, recognizing a qualified privilege. This Court granted certiorari and consolidated the cases.

On March 10, 1976, Otis Trammel was indicted with Edwin Lee Roberts and Joseph Freeman for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U.S.C. §§ 952(a), 962(a), and 963. The indictment also named six unindicted co-conspirators, including petitioner’s wife Elizabeth Ann Trammel. According to the indictment, petitioner and his wife flew from the Philippines to California in August 1975, carrying with them a quantity of heroin, and Freeman and Roberts assisted them in its distribution. Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug. On November 3, 1975, with four ounces of heroin on her person, she boarded a plane for the United States. During a routine customs search in Hawaii, she was searched, the heroin was discovered, and she was arrested. After discussions with Drug Enforcement Administration agents, she agreed to cooperate with the Government. Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman. He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him. At a hearing on the motion, Mrs. Trammel was called as a Government witness under a grant of use immunity. She testified that she and petitioner were married in May 1975 and that they remained married. She explained that her cooperation with the Government was based on assurances that she would be given lenient treatment. She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy. The District Court ruled that Mrs. Trammel could testify in support of the Government’s case to any act she observed during the marriage and to any communication made in the presence of a third person. However, confidential communications between petitioner and his wife were held to be privileged and inadmissible. The motion to sever was denied. At trial, Elizabeth Trammel testified within the limits of the court’s pretrial ruling; her testimony, as the Government concedes, constituted virtually its entire case against petitioner. He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(b). In the Court of Appeals petitioner’s only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened this Court’s teaching in Hawkins v. United States and therefore constituted reversible error. The Court of Appeals rejected this contention. It concluded that Hawkins did not prohibit the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her testimony.

In January 1967, sixteen-year-old Melvin Porter was arrested for selling marijuana to an undercover police officer. Four days after his arrest, while in the custody of juvenile authorities, Porter told Officer Wade that respondent John Green had supplied him with the marijuana. Porter stated that Green had called him earlier that month, asked him to sell some stuff or grass, and personally delivered a shopping bag containing twenty-nine baggies of marijuana from which Porter made the sale. A week later, Porter testified at Green's preliminary hearing. He again identified Green as his supplier, though he now stated that Green had shown him where to pick up the shopping bag hidden in the bushes at Green's parents' house rather than personally delivering it. Green's counsel, the same attorney who later represented him at trial, conducted extensive cross-examination of Porter at the hearing. At the conclusion of the hearing, Green was charged with furnishing marijuana to a minor. Green's trial took place two months later before a judge sitting without a jury in the Superior Court of San Luis Obispo County. Porter again took the stand as the State's chief witness but proved markedly evasive and uncooperative. He testified that Green had called him and asked him to sell some stuff and that he had obtained twenty-nine baggies of marijuana. Porter claimed he could not remember the events after the phone call because he had taken LSD twenty minutes before Green phoned and the drugs prevented him from distinguishing fact from fantasy. During Porter's direct examination, the prosecutor read excerpts from his preliminary hearing testimony, which were admitted as substantive evidence under California Evidence Code section 1235. Officer Wade also testified about Porter's earlier statement to him. Porter admitted making both prior statements and insisted he had been telling the truth as he then believed it, but he maintained that his current testimony about his inability to remember was also truthful. Green was convicted. The California Court of Appeal reversed the conviction, holding that the use of Porter's prior statements violated the Confrontation Clause. The California Supreme Court affirmed. The United States Supreme Court granted certiorari.

In 1995 Amanda Mitchell and 22 other defendants were indicted in the Eastern District of Pennsylvania for offenses arising from a conspiracy to distribute cocaine in Allentown from 1989 to 1994. Mitchell was charged with one count of conspiring to distribute five or more kilograms of cocaine and three counts of distributing cocaine within 1,000 feet of a school or playground. Without a plea agreement she pleaded guilty to all four counts. She reserved the right to contest the drug quantity attributable to her under the conspiracy count. The District Court advised her that quantity would be determined at sentencing. Before accepting the plea the District Court conducted the Rule 11 colloquy. It informed Mitchell that the range of punishment was complex because the amount of cocaine had not yet been established. She faced a mandatory minimum of ten years if held responsible for at least five kilograms. Mitchell stated under oath that she had done "some of it." After consulting counsel she reaffirmed her intention to plead guilty to all charges. The court accepted the plea. In 1996 nine codefendants went to trial. Three cooperating codefendants who had pleaded guilty testified at Mitchell's sentencing hearing. They adopted their trial testimony. One furnished additional information on the amount of cocaine petitioner sold. According to him, petitioner worked two to three times a week, selling one and one-half to two ounces of cocaine a day, from April 1992 to August 1992. Then, from August 1992 to December 1993 she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick. Mitchell offered no evidence and did not testify. Her counsel argued that only the three documented sales to undercover buyer Alvitta Mack totaling two ounces should be credited. The District Court ruled that Mitchell had no right to remain silent at sentencing because of her guilty plea. It expressly relied on her failure to testify in crediting the codefendants' testimony. The court found her responsible for more than five kilograms and imposed the ten-year mandatory minimum sentence together with six years of supervised release and a $200 special assessment. The Court of Appeals for the Third Circuit affirmed. The Supreme Court granted certiorari.

In a California court, petitioner Griffin was tried by jury and convicted of first-degree murder. He did not testify during the guilt phase of the trial, although he did testify at the separate penalty phase. The prosecution presented evidence placing Griffin with the deceased on the evening of her death in the alley where her body was found. The trial court instructed the jury on the defendant's right not to testify. It stated that if the defendant failed to deny or explain evidence or facts against him that he could reasonably be expected to deny or explain because of facts within his knowledge, the jury could take that failure into consideration as tending to indicate the truth of such evidence. The prosecutor argued to the jury that Griffin knew whether the victim had a beaten appearance when he left her apartment, how she got down the alley, how the blood got on the bottom of the concrete steps, how long he was with her in the box, how her wig got off, and whether he beat or mistreated her. The prosecutor emphasized that Griffin had not taken the stand to deny or explain these matters. Following the jury's verdict of guilty on the charge of first-degree murder, the death penalty was imposed after the penalty phase. The California Supreme Court affirmed the conviction and judgment. The United States Supreme Court granted a writ of certiorari to review the case after its decision in Malloy v. Hogan.