Donnelly v. Dechristoforo, 416 U.S. 637 (1974)

MR. JUSTICE DOUGLAS, dissenting.

The function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws, and give those accused of crime a fair trial. As stated by the Court in Berger v. United States, 295 U.S. 78, 88:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is, in a peculiar and very definite sense, the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

We have here a state case, not a federal one, and the prosecutor is a state official. But we deal with an aspect of a fair trial which is implicit in the Due Process Clause of the Fourteenth Amendment by which the States are bound. Chambers v. Mississippi, 410 U.S. 284; Sheppard v. Maxwell, 384 U.S. 333; Turner v. Louisiana, 379 U.S. 466; Irvin v. Dowd, 366 U.S. 717.

In this case, respondent was charged with first-degree murder, and was convicted in the state court by a jury. At no time did he seek to plead guilty to a lesser offense. It is stipulated:

[A]t no time did defendant seek to plead guilty to any offense; at no time did the Commonwealth seek to solicit or offer to accept a plea; and at all times defendant insisted upon a trial.

A codefendant pleaded guilty to second-degree murder, and the jury was advised of the fact.

As to the guilt of respondent the prosecutor told the jury: "I honestly and sincerely believe that there is no doubt in this case, none whatsoever."

And he went on to say: "I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder."

These statements, in the setting of the case and in light of the fact that the jury knew the codefendant had pleaded guilty to second-degree murder, are a subtle equivalent of a statement by the prosecutor that respondent sought a lesser penalty. Counsel for respondent immediately objected, but the court, at the time, did not admonish the prosecutor or tell the jury to disregard the statement, though it did cover the matter later in its general instructions.

I

As a matter of federal law, the introduction of a withdrawn plea of guilty is not admissible evidence, Kercheval v. United States, 274 U.S. 220. As a matter of procedural due process, the Confrontation Clause of the Sixth Amendment, applicable to the States by reason of the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, would bar a person from testifying that the defendant had sought a guilty plea unless the right of cross-examination of the witness was afforded, id. at 406-408. That requirement of procedural due process should be sedulously enforced (save for the recognized exceptions of dying declarations and the like, id. at 407) lest the theory that the end justifies the means gains further footholds here. The prosecutor is not a witness, and he should not be permitted to add to the record either by subtle or gross improprieties. Those who have experienced the full thrust of the power of government when leveled against them know that the only protection the citizen has is in the requirement for a fair trial. The assurance of the Court that we make no retreat from constitutional government by today’s decision has therefore a hollow ring.

Activist judges have brought federal habeas corpus into disrepute at the present time. It is guaranteed by the Constitution. It is a built-in restraint on judges -- both state and federal -- and it is also a restraint on prosecutors who are officers of the court. Our activist tendencies should promote not law and order, but constitutional law and order. Judges. too, can be tyrants, and often have been. Prosecutors are often eager to take almost any shortcut to win, yet, as I have said, they represent not an ordinary party, but We the People. As I have noted, their duty is as much "to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one," Berger v. United States, supra, at 88.

It is, I submit, quite "improper" for a prosecutor to insinuate to the jury the existence of evidence not in the record and which could not be introduced without the privilege of cross-examination.

II

The Supreme Judicial Court of Massachusetts had difficulty with this case when it came before it on direct appeal, two Justices, which included the Chief Justice, dissenting,

I would affirm the judgment below.

MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL would affirm the judgment below for the reasons stated in Part II of the dissent of MR. JUSTICE DOUGLAS.