Alex M. Azar II*
The Supreme Courts October Term 1997 has generally been described
in rather blasé terms. In fact, according to statistics compiled
by The National Law Journal, 48% of the Courts dispositions
this Term were unanimous.
The Court was much more fractured, however, in the field of criminal
law and procedure, with all nine Justices banding together in only
24% of the Courts 29 full dispositions in this area (the Court
dismissed two other criminal cases as improvidently granted). In
six cases -- or 27% of the cases in which the Court was divided
-- the Justices split along unorthodox lines. The only consistent
refrain in these most interesting of divisions is that Justices
Scalia and Breyer were on the opposite sides in each case, with
Justice Breyer in the majority and Justice Scalia on the losing
side. Moreover, in five of these six cases, the government won.
Overall, the government triumphed in 70% of the Courts criminal
law and procedure cases this past Term. This issue of the Appellate
Corner will focus on just three of the more significant rulings
from this part of the Courts docket this Term.
United States v. Scheffer
In United States v. Scheffer, 118 S. Ct. 1261 (1998), the Court
held that the per se exclusion of polygraph evidence in criminal
trials does not unconstitutionally burden the right of a defendant
to present a defense. The defendant in that case, Scheffer, was
an Air Force airman. Appropriately -- as it turned out -- he volunteered
to work as an informant on drug investigations for the Office of
Special Investigations. As he had been warned in taking the position,
Scheffer was asked at some point to provide a urine sample. Before
the results of that test were known, he agreed to take a polygraph
test. The examiner found that the test "indicated no deception"
when Scheffer denied using drugs since joining the Air Force. The
urinalysis, however, later detected the presence of methamphetamine.
When court-martialed for that drug use (and other unrelated offenses,
such as going AWOL after his polygraph examination), Scheffer testified
that he must have innocently and unknowingly ingested the drugs.
Scheffer unsuccessfully sought to introduce the results of his
polygraph examination to bolster his credibility. The military judge
rejected Scheffers contention that the per se ban on polygraph
evidence in Military Rule of Evidence 707 is unconstitutional. The
Air Force Court of Criminal Appeals affirmed en banc. A divided
Armed Forces Court of Appeals reversed, holding that such a per
se exclusion violates the accuseds right to present a defense.
In an important decision on the power of courts to limit the introduction
of defense evidence in criminal cases, the Supreme Court reversed.
All but Justice Stevens joined the bulk of Justice Thomas
opinion for the Court. While reaching out to note that the Constitution
nowhere explicitly grants a defendant the right to a meaningful
opportunity to present a complete defense, the Court did not quibble
with this proposition. The Court began, however, by emphasizing
that a defendants right to present relevant evidence is "subject
to reasonable restrictions." A restriction is reasonable, said
the Court, if it furthers a legitimate interest in the criminal
trial process and is not arbitrary or disproportionate to the purpose
it is designed to serve.
In applying this standard, the Court found that the exclusion of
unreliable evidence from criminal trials is a legitimate goal. Dealing
a significant blow to advocates of polygraph testing, the Court
concluded that there is no consensus that the polygraph is reliable.
Its opinion recounted the "extremely polarized" debate
in the scientific community about the reliability of the test and
noted the significant disagreement among state and federal courts
concerning the admissibility and reliability of polygraph evidence.
Given this lack of consensus, the Court held that the per se exclusion
of all polygraph evidence was "a rational and proportional
means of advancing the legitimate interest in barring unreliable
evidence." While disposing of the claim that the admission
of polygraph evidence is constitutionally required, the Court took
care to emphasize that lower courts may permit the admission of
such evidence, where permissible under the relevant rules of evidence.
Hence, the Court explained that under the new, more relaxed standard
for the admissibility of scientific evidence under the federal rules
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), individual federal jurisdictions could reasonably reach
differing conclusions on the admissibility of polygraph evidence.
The Court then proceeded to dispatch three prior cases holding
unconstitutional various restrictions on the admissibility of defense
evidence. In a distinguishing act that may yet spawn new litigation,
the Court explained that "we have found the exclusion of evidence
to be unconstitutionally arbitrary or disproportionate only where
it has infringed upon a weighty interest of the accused." (Emphasis
added.) The exclusions of evidence in each of those three cases
"significantly undermined fundamental elements of the accuseds
defense." In Rock v. Arkansas, 483 U.S. 44 (1987), the Court
struck down a rule prohibiting a defendant from testifying on her
own behalf where her memory had been hypnotically refreshed. It
held unconstitutional in Washington v. Texas, 388 U.S. 14 (1967),
a statute prohibiting co-defendants or co-participants in a crime
from testifying about the facts they observed. Finally, in Chambers
v. Mississippi, 410 U.S. 284 (1973), the Court invalidated rules
preventing a party from impeaching its own witness and from entering
hearsay evidence of three persons to whom that witness had confessed
guilt for the crime at issue. The Court explained that those evidentiary
restrictions were infirm because they prevented the accused from
introducing all relevant factual details of the charged offense
from the defense perspective or from testifying on her own behalf.
In contrast, Rule 707 bars only what the Court described as expert
opinion testimony about the defendants own credibility.
Justice Thomas, joined only by the Chief Justice and Justices Scalia
and Souter, set forth two additional legitimate governmental interests
in the per se ban on polygraph evidence: preserving the jurys
function as the arbiter of credibility by protecting it from undue
reliance on expert and scientific opinions on credibility and preventing
collateral litigation about the validity and reliability of particular
polygraph tests and examiners. Justice Kennedy, joined by Justices
OConnor, Ginsburg, and Breyer, wrote separately to express
disagreement with these two conclusions and to question the wisdom
(as a policy matter) of a per se exclusion of polygraph evidence.
Justice Stevens was the lone dissenter, concluding that polygraph
evidence is actually "independent factual evidence" that
may be relevant "to the central issue at trial" and that
the proffered governmental interests do not hold water. In addition,
Justice Stevens raised the interesting (but not briefed) question
whether Rule 707 violates the statute authorizing the President
to promulgate rules of evidence "which shall, so far as he
considers practicable, apply the principles of law and the rules
of evidence generally recognized . . . in United States district
courts." To Justice Stevens, the per se ban is inconsistent
with the Daubert case-by-case approach to admission of scientific
evidence in federal courts.
Brogan v. United States
In Brogan v. United States, 118 S. Ct. 805 (1998), the Court finally
erased a significant blot on the face of federal criminal law: the
so-called "exculpatory no" doctrine. 18 U.S.C. §
1001 criminalizes making a false statement in a matter within the
jurisdiction of a government agency. Notwithstanding the literal
language of that statute, many circuits had adopted the "exculpatory
no" doctrine under which a simple denial of guilt does not
come within the meaning of the statute.
Justice Scalia authored the opinion of the Court, joined by the
Chief Justice, Justices OConnor, Kennedy, and Thomas, and
in relevant part by Justice Souter. The opinion offers a wonderful
example of Justice Scalias inimitable writing style, containing
many lines that are destined to go down as among his more quotable.
It also contains the witty, jabbing, mocking dialectic for which
he is justly famous, often seen when Justice Scalia writes separately,
but rarely found -- as here -- in his opinions for the Court.
Brogan, the defendant, had accepted cash payments from management
while he was a union official. Federal agents from the Labor Department
and the IRS later made a house call on Brogan, and Brogan said "no"
in response to a direct question whether he had received any payments
from that company while he was a union officer. The agents informed
Brogan that they had company records showing the contrary, and they
reminded him that lying to federal agents was a crime. He refused
to change his answers. The Second Circuit affirmed his conviction,
rejecting Brogans claim that such an "exculpatory no"
falls outside the meaning of section 1001s false statement
In the Supreme Court, Brogan conceded that his utterance was both
a statement and false, and that "under a literal reading
of the statute he loses." That placed Mr. Brogan in the unenviable
position of asking Justice Scalia to ignore the "literal text."
The Court rejected almost out of hand Brogans first argument
that section 1001 criminalizes only those false statements that
"pervert governmental functions," and that a simple denial
of guilt to investigators does not do so, even if immediately disbelieved
by investigators. The Court emphasized that while the purpose of
the statute may have been to protect governmental functions, "it
is not, and cannot be, our practice to restrict the unqualified
language of a statute to the particular evil that Congress was trying
Justice Scalias opinion for the Court reaches its pitch in
dealing with Brogans next argument that the "exculpatory
no" doctrine is inspired by the Fifth Amendment. Brogan argued
that "a literal reading of § 1001 violates the spirit
of the Fifth Amendment because it places a cornered suspect
in the cruel trilemma of admitting guilt, remaining
silent, or falsely denying guilt." The Court noted that "[t]his
trilemma is wholly of the guilty suspects own
making . . . [T]he innocent person lacks even a lemma."
Justice Scalia dissected the historic irony of Brogans invocation
of the "cruel trilemma" language to support his claim.
That "bon mot" (as he calls it) first appeared in Murphy
v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964).
It was there used to vindicate the right to remain silent in the
face of the "cruel trilemma" of "`self-accusation,
perjury or contempt." Justice Scalia explained: "In
order to validate the exculpatory no, the elements of
this cruel trilemma have now been altered -- ratcheted
up, as it were, so that the right to remain silent, which was the
liberation from the original trilemma, is now itself a cruelty.
We are not disposed to write into our law this species of compassion
The Court reiterated the bedrock and long established principle
that nothing in the text or "spirit" of the Fifth Amendment
confers a privilege to lie, even if a defendants silence may
be used against him as evidence of guilt or for impeachment purposes.
The Court did not tarry long on Brogans claims that witnesses
may not know they have the right to remain silent ("In the
modern age of frequently dramatized Miranda warnings,
that is implausible") or that section 1001 must be narrowed
-- by the Court as opposed to Congress -- to avoid prosecutorial
abuse and piling on of offenses.
Justice Souter joined all of majority opinion except for the discussion
of the risk of prosecutorial abuse and he signed onto Justice Ginsburgs
opinion concurring in the judgment, which contains nothing but a
plea to Congress to revise section 1001 to take away this "extraordinary
authority . . . conferred on prosecutors to manufacture crimes."
She also argues that Congress never intended to make every "exculpatory
no" a crime.
Justice Stevens, joined by Justice Breyer, dissented. In their
view, it is not unusual for the Court to limit a broadly worded
criminal statute to the coverage intended by Congress, and Congress
did not intend to criminalize "exculpatory nos"
any more than it intended to criminalize false statements by undercover
agents made to criminals in the course of a drug investigation,
even though both fit within the literal terms of the statute. Moreover,
the Court should defer to what they described as the "virtually
uniform understanding of the bench and the bar that persisted for
decades with . . . the approval of this Court as well as the Department
of Justice." Justice Stevens concluded by quoting Cokes
Institutes for the proposition that, "it is the common opinion,
and communis opinio is of good authoritie in law."
In a stinging section of the majority opinion as lengthy as Justice
Stevens dissent, Justice Scalia tore into these arguments
with something of a lecture on textualism. He explained that in
those cases cited by the dissent in which the Court appears to have
narrowed the literal terms of a criminal statute, it either has
not purported to be departing from a reasonable alternative reading
of the text or was simply applying what it thought to be a background
interpretive principle of general application (such as applying
a mens rea requirement to a statute that was silent on the issue).
In contrast, said the majority, what the dissent argued for is
the proposition that "criminal statutes do not have to be read
as broadly as they are written, but are subject to case-by-case
exceptions," a process that would leave the Court "at
sea." The Court also took the dissent to task for its quotation
of Coke, noting that the quoted phrase comes from a discussion of
the lex communis, not statutory law, and read in context means simply
that "the common law is the common law." The Court also
mocked the dissents acquiescence principle: "While communis
error facit jus [common error, repeated many times, makes law] may
be a sadly accurate description of reality, it is not the normative
basis of this Courts jurisprudence."
It will be interesting to see if Attorney General Reno responds
to Brogan by changing her recent revision to the U.S. Attorneys
Manual which provides that charging a suspect under section 1001
for a false denial during an investigation violates Department policy.
Bryan v. United States
This Terms decision in Bryan v. United States, 118 S. Ct.
1939 (1998), was a major development in mens rea law. It severely
limits the Courts decision four Terms ago in Ratzlaf v. United
States, 510 U.S. 135 (1994), and attempts to clarify the meanings
of "knowing" and "willful" requirements in criminal
In an opinion authored by Justice Stevens and joined by Justices
OConnor, Kennedy, Souter, Thomas, and Breyer, the Court held
that a willfulness requirement in a criminal statute requires only
that the defendant generally understood that what he was doing was
illegal, not that he knew of the specific criminal provision involved.
The statute involved in Bryan criminalizes "willfully"
dealing in firearms without a federal license. Other criminal provisions
in the same act require only that the defendant acted "knowingly."
Lacking the required federal license, the defendant, Bryan, used
straw purchasers to acquire pistols, had the straw purchasers make
false statements when purchasing the guns, assured the straw purchasers
that he would file off the serial numbers on the guns, and sold
the guns on street corners known for drug dealing. From this the
Court concluded that Bryan "unquestionably" knew that
was he was doing was illegal. The question presented, however, was
whether the willfulness requirement in the statute mandates proof
of knowledge of the federal licensing requirement. The district
court refused to so instruct the jury, and the court of appeals
The Supreme Court emphasized that "a willful act
is one undertaken with a bad purpose." In other
words, the government must prove that the defendant acted with knowledge
that his conduct was unlawful. Rejecting the argument that the presence
of both knowing and willful requirements in the same statute indicates
that Congress intended a higher mens rea showing for willful violations,
the Court explained that "the term knowingly does
not necessarily have any reference to a culpable state of mind or
to knowledge of the law." Thus, unless the text of the statute
dictates otherwise, a "knowing" requirement refers only
to knowledge of the facts that constitute the offense, not the law
that makes that conduct illegal. (For example -- said the Court
-- a "knowing" violation of the prison escape statute
is shown if the escapee knew his actions would result in his leaving
the prison without permission.) In other words, "the background
presumption that every citizen knows the law makes it unnecessary
to adduce specific evidence to prove that an evil-meaning
mind directed the evil-doing hand," as Justice
Jackson described the difference between mens rea and actus reus.
Where willfulness is required, however, it must be shown that the
defendant acted with an "evil-meaning mind."
The question then for the Court was just how "evil-meaning"
that mind has to be. In two other contexts, the Court has required
proof that the defendant knew of the particular law he was accused
of violating. In tax cases, the Court has repeatedly held that a
willful violation requires proof that the defendant knew of the
specific criminal provision at issue. In Ratzlaf the Court held
that the jury must find that a defendant knew that his structuring
of cash transactions in small dollar amounts to avoid the $10,000
cash transaction reporting requirement was itself unlawful.
In a significant retrenchment, the Court explained that the tax
cases and Ratzlaf "involved highly technical statutes that
presented the danger of ensnaring individuals engaged in apparently
innocent conduct." Hence, in those cases the Court had carved
out "`an exception to the traditional rule that ignorance
of the law is no excuse." In a disappointing lapse, the Court
failed to explain why the firearms licensing requirement is not
such a "highly technical statute," except to say that
because this particular defendant knew his conduct was illegal,
this statute does not present the risk of ensnaring innocent conduct.
It can be expected that the next smart lawyer confronting this statute
with a client who was a bit less furtive than Mr. Bryan will try
to exploit this hole in the Courts reasoning and argue that
as to his client, the statute is "highly technical."
Justice Souter joined the majority opinion but also wrote a one
sentence concurrence on an unrelated point.
Justice Scalia dissented in a brief opinion joined by Justice Ginsburg
and even more interestingly the Chief Justice, who was in dissent
in Ratzlaf. In Justice Scalias view the meaning of the willfulness
requirement in the licensing statute is ambiguous. For him, the
majority succeeded in showing that specific knowledge of that criminal
prohibition is not clearly required by the statute, but it failed
to show that only general knowledge of illegality is. Justice Scalia
noted that the word "willfully" has many meanings that
are often affected by context, sometimes requiring conduct that
is only intentional, knowing, or voluntary, as opposed to accidental,
and at other times much more. The majority conceded that this statute
-- containing only a knowing requirement in related provisions --
mandates some knowledge of the law.
Justice Scalia read the majority opinion to say that knowledge
of any law is enough, or "that the defendant must be ignorant
of every law violated by his course of conduct to be innocent of
willfully violating the licensing requirement." Thus, Bryan
would willfully violate the licensing requirement "if he knew
that his street-corner transactions violated New York Citys
business licensing or sales tax ordinances," or "if Bryan
knew that the car out of which he sold the guns was illegally double-parked."
Although Justice Scalia did not read the statute to require that
the defendant be able to cite the particular statutory provision,
the statute could easily be read to require at least that the defendant
be generally aware that the "actus reus punished by the statute
-- dealing in firearms without a license -- is illegal." Given
the textual ambiguity between the two options -- knowledge that
anything being done is illegal and knowledge that the specific act
charged is illegal -- Justice Scalia would apply the rule of lenity
to require the latter.
United States v. Singleton
Before closing, the Appellate Corner must pause to mention a remarkable
recent court of appeals decision. It is well known that plea bargaining
for reduced charges and sentences and granting immunity in recognition
of a witness testimonial cooperation have long been staples
of the American justice system and are recognized in the federal
immunity and sentencing statutes. Nonetheless, on July 1, a panel
of the Tenth Circuit consisting of Chief Judge Seymour, a Carter
appointee, Judge Ebel, a Reagan appointee, and Judge Kelly, a Bush
appointee, held that the federal criminal prohibition on giving
anything of value to a witness because of his testimony, 18 U.S.C.
§ 201(c)(2), criminalizes a federal prosecutors promise
of leniency to a witness in consideration of that witness
testimony. United States v. Singleton, 144 F.3d 1343 (10th Cir.
The opinion written by Judge Kelly presents a wonderful example
what Justice Scalia describes as the evils of "strict constructionism"
-- "A text should not be construed strictly, and it should
not be construed leniently; it should be construed reasonably, to
contain all that it fairly means." Antonin Scalia, A Matter
of Interpretation 23 (1997). The Court wrapped itself repeatedly
in the mantra that the language of a statute must ordinarily control,
but contorted its way through the inquiry into what the words of
the statute originally meant at the time they were enacted. Indeed,
the Court would only "pause" for the most fundamental
problem with its interpretation -- the absurdity that Congress meant
to criminalize against officers of the United States a means of
law enforcement that was widely practiced and judicially approved.
To reach its crabbed meaning, the Court also had to wriggle around
cases establishing that statutes do not apply to the government
or affect government functions unless the text expressly states
so, the witness immunity statutes, and sentencing statutes authorizing
reduced sentences for defendants who provide substantial assistance
to the investigation or prosecution of others, 18 U.S.C. §
3553(e); 28 U.S.C. § 994(n). As to the last point, the Court
concluded that these statutes can be read to allow a substantial
assistance reduction for everything but a witness actual testimony.
Hence, a witness could cooperate with the investigation but refuse
to provide any testimony under oath on the matter, and the court
could not on that basis deny a substantial assistance reduction.
To add insult to injury, the Court further found that the promise
not to prosecute for certain offenses and to inform state authorities
and the district court of the witness cooperation in consideration
for the witness testimony violated state ethical rules. Under
the Courts reading of the federal statute and state ethics
rules, not only the prosecutor, but the district court judge presumably
could be imprisoned and disbarred for the common practice of reducing
a witness sentences in light of his truthful testimony.
Only nine days after this opinion was issued, the Tenth Circuit
sua sponte ordered the case reheard en banc and vacated the panel
opinion. Argument is set for November in this case that all prosecutors
and criminal defense lawyers in the country will be following with
*Alex M. Azar II, a former law clerk to Justice Antonin Scalia,
is an attorney at Washington, D.C.s Wiley, Rein & Fielding.
The views expressed are solely those of Mr. Azar. Readers are encouraged
to e-mail the author at "AAZAR@WRF.COM"
with suggestions of noteworthy or notorious cases for discussion
in future issues.