Williams v. Florida Brief Amicus Curiae

    Jtt %  i ’ujtrattp (Erntrt
OF TH E

States
October Term, 1969

No. 927

J ohnny W illiams,

VS.

State of F lorida,

Petitioner,

Respondent.

On Writ of Certiorari to the Florida 
District Court of Appeal, Third District

BRIEF AMICUS CURIAE 
ON BEHALF OF VIRGIL JENKINS

J ack Greenberg,
M ichael Meltsner,

10 Columbus Circle, Suite 2030,
New York, New York 10019,

J erome B. F alk, J r.
650 California Street, Suite 2920,
San Francisco, California 94108,

Attorneys for Amicus Curiae 
Virgil Jenkins.

P E R N A U " W A L S H  P R I N T I N G  C D . ,  S A N  F R A N C I S C O ,  C A L I F O R N I A



Subject Index

Page
Statement as to interest of amicus curiae ................ .............  1
Summary of argument .....................................................   6
Argument .....................     7
Introduction .............................................     7

I
The defendant cannot, consistently with the fifth and 

fourteenth amendments, constitutionally be compelled 
to disclose to the prosecution, in advance of trial, 
information respecting the nature of the defense he 
will or may assert .......................................................... 11

II
The defendant may not constitutionally be denied the 

opportunity to offer evidence by his own testimony 
on other witnesses, tending to establish his innocence, 
as a penalty for noneomplianee with a notice I’equire-
ment .....................................................................................  17

Conclusion .................... ...................................................................  27

Table of Authorities Cited

Cases Pages
Anderson v. Nelson, 390 U.S. 523. (1968) .............................. 11
Barber v. Page, 390 U.S. 719' (1968) ...................................... 18
Benton v. Maryland, 395 U.S. 784 (1969) .......................... 24
Boyd v. United States, 116 U.S. 616 (1886) ...................... 16
Cephus v. United States, 324 F.2d 893 (D.C.Cir. 1963) . . . .  12
Commonwealth v. Vecchiolli, 208 Pa. Super. 483, 224 A.2d

96 (1966) ....................................................... .........................  8
Culombe v. Connecticut, 367 U.S. 568 (1961) ......................12, 14
Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951) 22
Douglas v. Alabama, 380 U.S. 415 (1965) ......................... 18
Duncan v. Louisiana, 391 U.S. 145 ...................................... 10
Escobedo v. Illinois, 378 U.S. 478 (1964) ......................... 13
Pay v. Noia, 372 U.S. 391 (1963) ...........................................   26
Ferguson v. Georgia, 365 U.S. 570 (1961) ........    20



T able oe A uthorities Citedii

Pages
Gardner v. Broderick, 392 U.S. 273 (1968) ......................  11
Garner v. Louisiana, 368 U.S. 157 (1951) ................ .............  12
Garrity v. New Jersey, 385 U.S. 493 (1967) ......................  11
Gori v. United States, 367 U.S. 364 (1961) .......................... 24
Griffin v. California, 380 U.S. 609 (1965) ..........................11,25
Griswold v. Connecticut, 381 U.S. 479 (1965) ..................  10
Harrison v. United States, 392 U.S. 219 (1968) .................. 23
In re Gault, 387 U.S. 1 (1967) ............................................. 18
In re Oliver, 333 U.S. 257 (1948) .........................................  18
Klopfer v. North Carolina, 386 U.S. 213 (1967) ..............  23
Leary v. United States, 396 U.S. 6 (1969) ..........................  12
Leland v. Oregon, 343 U.S. 790 (1952) ................................  11
Malloy v. Hogan, 378 U.S. 1 (1964) ...............................9,12,13
Miranda v. Arizona, 384 U.S. 436 (1966) .......................... 11
Morrison v. California, 291 U.S. 82 (1934) .......................... 11
Murphy v. Waterfront Commission, 378 U.S. 52 (1964) 9
Oyler v. Boles, 368 U.S. 448 (1962) ...................................... 18
People v. Rakiec, 260 App. Div. 452, 23 N.Y.S. 2d 607

(1940) ........................................................................................ 8,20
People v. Schade, 161 Misc. 212, N.Y.S. 612 (1936) . . . .  8
People v. Shulenbera, 279 App. Div. 1115, 112 N.Y.S. 2d

374 (1952) ...............................................................................  8
People v. Talle, 111 Cal.App.2d 650 (1952) ............ .............. 12
Pointer v. Texas, 380 U.S. 400 (1965) ..............................  18
Rider v. Crouse, 357 F.2d 317 (10th Cir. 1966) .............. 8
Rogers v. Richmond, 365 U.S. 534 (1961) ..............................  12
Smith v. Hooey, 393 U.S. 374 (1969) .................................. 23
Snyder v. Massachusetts, 291 U.S. 97 (1934) ...................... 9
Specht v. Patterson, 386 U.S. 605 (1967) .............................. 18
Speiser v. Randall, 357 U.S. 513 (1958) ............................. 11
Spencer v. Texas, 385 U.S. 554 (1967) .............................. 9,10
Spevack v. Klein, 385 U.S. 511 (1967) ..............................  11
State v. Jenkins, 203 Kan. 354, 454 P.2d 496 (1969) . . . .  4
State v. Kelly, 203 Kan. 360, 454 P.2d 501 (1969) .......... 4
State v. Kopacka, 261 Wis. 70, 51 N.E.2d 495 (1 9 5 2 ).... 8
State v. Rouriek, 245 Iowa 319, 60 N.W.2d 529 (1953) . . . .  23
State v. Smetna, 131 Ohio St. 329, 2 N.E.2d 778 (1936) 8
State v. Stump, .......  Iowa ....... , 119 N.W.2d 210 (1963).. 8, 20:
State v. Thayer, 124 Ohio St. 1, 176 N.E. 656 (1931).. .8, 20, 21



Pages
Stevens v. Marks, 383 U.S. 234 (1966) ..............................  11
Thompson v. City of Louisville, 362 U.S. 199 ( I 9 6 0 ) . . . .  12
Tot v. United States, 319 U.S. 463 (1943) ..........................  12
Ungar v. Sarafite, 376 U.S. 575 (1964) ..................................  19
United States v. Augenbliek, 393 U.S. 348 (1969) ..............  26
United States v. Ewell, 383 U.S. 116 (1966) .................. 23
United States v. Gainey, 380 U.S. 63 (1965) ......................  12
United States v. Housing Foundation of America, 176 F.2d

665 (3rd Cir. 1949) .................................................................  12
United States v. Jackson, 390 U.S. 570 (1968) ................  22
United States v. Robel, 389 U.S. 258 (1967) ......................  22
United States v. Romano, 382 U.S. 136 (1965) ..................  12
Washington v. Texas, 388 U.S. 14 (1967) ...................18-19,26
Watts v. Indiana, 338 U.S. 49 (1949) ..................................  12

Constitutions
United States Constitution:

Fifth Amendment ................................2, 6,11,12,14, 22, 24, 26
Sixth Amendment ................................................................ 23
Fourteenth Amendment ..............................................2, 6,14, 25

Rules
Arizona Rules of Criminal Procedure 192(B) (1959) . . . .  8
Federal Rule of Criminal Procedure 12 (2d Preliminary

Draft 1944) .............................................................................   21
39 F.R.D. 272 (1966) .............................................................  14
Federal Rules of Criminal Procedure, Rule 12A, 1962 Draft,

31 F.R.D. 673 (1963) .............................................................  21
Federal Rules of Criminal Procedure 16(c) .................  .14
Florida Rules of Criminal Procedure, Rules 1.200 ...........  2,20
New Jersey Rules, 3:5-9 (1958) .............................................. 8
Pennsylvania Rules of Criminal Procedure 312, 19 P.S.App. 8

Statutes
28 U.S.C., § 2255 .......................................................................... 2
Indiana Annotated Statute, §§ 1631-33 (1956) ..................  8
Iowa Code, § 777.18 (1962) ......................................... . 8

T able of A uthorities Cited iii



IV T able op A uthorities Cited

Pages
Kansas General Statutes Annotated, § 60-1507 .................. 2
Kansas General Statutes Annotated, § 62-1341 (1964 )... .2, 3, 8
Michigan Comp. Laws, §768.20-21 (Supp. 1966) ..............  8
Minnesota Statute, § 630.14 ......................................................  8
New York Code of Criminal Procedure, § 295-1 (1958).. 8
Ohio Revised Code Annotated, § 2945.58 ..............................  8
Oklahoma Statute, Title 22, § 585 (1961) ..............................  8,23
South Dakota Code, § 34.2801 (Supp. 1960) ......................  8
Utah Code Annotated, § 77-21-17 (1964) ..............................  8
Vermont Statute Annotated, Title 13, §§ 6561-62 (1959) 8

Texts
36 California State B. J. 480, 487 (1961) ..........................  15
California Law Review Comm., Recommendation and 

Study Relating to Notice of Alibi in Criminal Actions
(1960) ........................................................................................ 21

The Challenge of Crime in a Free Society, 128-29 (1967) 26
Epstein, Advance Notice of Alibi, 55 J. Crim. L. C. &

P.S. 29-31 (1964) ..................................................................20,21
Epstein, Advance Notice of Alibi, p. 3 6 ..................................  23
76 Harvard Law Review, 838, 840 (1963) .......................... 14
2 Hawkins, Pleas of the Crown, 595 (8th ed. 1824) .......... 11
Millar, The Modernization of Criminal Procedure, J. 

Criminal Law 344, 350 (1920) ............................................  21
Oaks and Lehman, The Criminal Process of Cook County 

and the Indigent Defendant, University of Illinois Law
Forum 584, 693 (1966) .......................................................... 26

15 Stanford Law Review 700, 701 & n. 7 (1963) .............. 23
Task Force Report, The Courts 32 (1967) .......................... 25
18 Texas Law Review 151, 156 (1940) .................................. 23
18 Texas Law Review 151 (1946) .......................................... 21
8 Wigmore, Evidence 317 (McNaughton rev. 1961) ..........  11
8 Wigmore, Evidence, § 2268, pp. 406-08 and n. 6

(McNaughton rev. 1961) ......................................................  12
Wormuth and Mirkin, The Doctrine of the Reasonable 

Alternative, 9 Utah L. Rev. 254 (1964) ..........................  22



Ju %  &upmn? (ttnurt
OF THE

Intfrfr States

October T erm, 1969

No. 927

J ohnny W illiams,
Petitioner,

State of F lorida,
Respondent.

On Writ of Certiorari to the Florida 
District Court of Appeal, Third District

BRIEF AMICUS CURIAE 
ON BEHALF OF VIRGIL JENKINS

STATEMENT AS TO INTEREST OF AMICUS CURIAE

Virgil Jenkins, on whose behalf this brief amicus 
curiae is filed, is currently serving a 50 year sentence 
in the state penitentiary at Lansing, Kansas, having 
been convicted o f the crime of robbery. There has been 
prepared and will shortly be filed in the District Court 
of Sedgewick County, Kansas a Motion to Vacate



2

Sentence1 on behalf of Mr. Jenkins asserting, inter 
alia, that his conviction was obtained in violation of 
the Fifth and Fourteenth Amendments to the United 
States Constitution because of the invocation at his 
trial of the Kansas “ alibi”  statute, Section 62-1341 of 
the Annotated Statutes of Kansas. He has filed this 
amicus curiae brief because there is a substantial prob­
ability that any decision as to the constitutionality of 
Rule 1.200 of the Florida Rules of Criminal Procedure 
which might be rendered in this case would also be con­
trolling in his own case; moreover, as will appear, the 
facts of amicus’ case demonstrate more clearly—and, 
perhaps, more compellingly—than the case now before 
the Court the arbitrary and unconstitutional fashion 
in which alibi-notice procedures operate to infringe 
rights specifically protected by the Constitution of the 
United States.

Amicus was charged with participation in the rob­
bery of a Wichita motel in the early hours of the 
morning on July 26, 1967. He was arrested later in 
the morning along with two other men; items found 
on their persons and in the car in which they were 
riding strongly suggested that all or some of them 
were participants in the robbery.

After the conclusion of the prosecution’s ease-in- 
chief, the defense at first indicated that it was not its 
intention to call any witnesses. Thereafter, counsel for

1 Under Kansas procedure, a Motion to Vacate Sentence, which 
is filed pursuant to Kansas Gen. Stats. A nn. § 60-1507, serves in 
lieu of a petition for habeas corpus as the manner by which a 
criminal conviction is collaterally attacked much as motions to 
vacate under 28 U.S.C. § 2255 serve in the federal courts.



3

the defense moved to reopen the case and called de­
fendant Virgil Jenkins to the stand. He proceeded to 
testify that he was in a poolhall between the hours 
of midnight and approximately 3:00 A.M. on the 
night of the robbery, and thereafter was picked up by 
one of the two other men found in the car at the time 
of his arrest. The import of this testimony, of course, 
was that he could not have participated in the rob­
bery because, at the time of its commission, he was 
somewhere else.

At this point, the prosecutor objected and moved 
that the defendant’s entire testimony be striken on 
the ground that it constituted an alibi, and that no 
notice thereof had been given as required.2 This ob-

2Kansas Gen. Stats. A nn. § 62-1341 (1964) provides as follows:
In. the trial of any criminal action in the District Court,, 

where the complaint, indictment or information charges spe­
cifically the time and place of the offense alleged to have been 
committed, and the nature of the offense is such as necessitated 
the personal presence of the one who committed the offense, and 
the defendant proposes to offer evidence to the effect that he 
was at some other place at the time of the offense charged, he 
shall give notice in writing of that fact to the county attorney. 
The notice shall state where defendant contends he was at the 
time of the offense, and shall have endorsed thereon the names 
of witnesses which he proposes to use in support of such con­
tention.

On due application, and for good cause shown, the court may 
permit defendant to endorse additional names of witnesses on 
such notice, using the discretion with respect thereto now ap­
plicable to allowing the county attorney to endorse names of 
additional witnesses on an information. The notice shall be 
served on the county attorney as much as seven days before the 
action is called for trial, and a copy thereof, with proof of such 
service, filed with the clerk of the court: Provided, On due ap­
plication and for good cause shown the court may permit the 
notice to be served at any time before the jury is sworn to try 
the action.

In the event the time and place of the offense are not speci­
fically stated in the complaint, indictment or information, on 
application of defendant that the time and place be definitely



4

jeetion was sustained, and Mr. Jenkins’ entire 
testimony was struck. On appeal, the Kansas Su­
preme Court upheld this ruling (State v. Jenkins, 203 
Kan. 354, 454 P.2d 496 (1969), incorporating by ref­
erence the ruling in a companion case, State v. Kelly, 
203 Kan. 360, 454 P.2d 501 (1969)).3

In the: present case, Petitioner Williams had sought 
from the Florida courts a pre-trial order protecting 
him from disclosure of the names of his alibi wit­
nesses which under Florida law were required to be

stated in order to enable him to offer evidence in support of a 
contention that he was not present, and upon due notice there­
of, the Court- shall direct the county attorney either to amend 
the complaint or information by stating the time and place of 
the offense as accurately as possible, or to file a bill of parti­
culars to the indictment or information so stating the time and 
place of the offense, and thereafter defendant shall give the 
notice above provided if he proposes to offer evidence to the 
effect that he was at some other place at the time of the offense 
charged.

Unless the defendant gives the notice as above provided he 
shall not be permitted to offer evidence to the effect that he was 
at some other place at the time of the offense charged. In the 
event the time or place of the offense has not been specifically 
stated in the complaint, indictment or information, and the 
Court directs it be amended, or a bill of particulars filed, as 
above provided, and the county attorney advises the Court that 
he cannot safely do so on the facts as he has been informed 
concerning them; or if in the progress of the trial the evidence 
discloses a time or place of the offense other than alleged, but 
within the period of the statute of limitations applicable to the 
offense and within the territorial jurisdiction of the Court, the 
action shall not abate or be discontinued for either of those 
reasons, but defendant may, -without having given the notice 
above mentioned, offer evidence tending to show he was at some 
other place at the time of the offense.

3No petition for certiorari was filed from, that ruling, Mr. 
Jenkins’ counsel being of the opinion that there might be some 
possible question as to whether the federal question was frilly 
raised with respect to the alibi issue in the Kansas courts. For 
that reason, it was decided that a Motion to Vacate Sentence 
should first be brought in the trial court and, if relief should be 
denied by the state courts, to then seek certiorari in this Court. It 
was to that end that the pending Motion to Vacate was filed.



5

disclosed to the prosecution. Unsuccessful in that ef­
fort, he complied with the requirement, presumably 
on pain of the extreme sanction—exclusion of the 
defendant’s evidence of an alibi—which attends to 
those who fail to give the specified notice. In amicus’ 
case, however, notice was- never given, and as a conse­
quence he was not allowed to prove that he was some­
where other than at the scene of the alleged offense 
at the time of its commission. Indeed, Mr. Jenkins 
was not allowed to personally give testimony at Ms 
own trial. (This portion of the trial transcript is repro­
duced in Exhibit “ A ” herein.)

The case of amicus, then, presents a factual varia­
tion from the case now before the Court; it is one, we 
believe, which reveals the operation of the alibi-notice 
rule, as it exists in states such as Florida and Kansas, 
in its most vicious dress. Two entirely distinct consti­
tutional questions are, we submit, presented by such 
a provision: First, whether the State may constitu­
tionally compel the defendant in a criminal case to 
give the prosecution notice as to the nature of the 
defense it intends to offer, together with the names 
and addresses of the witnesses it intends to call in 
support of that defense; and second, even if  that re­
quirement is constitutional, whether it may be en­
forced. by excluding the evidence respecting that 
defense;—including the defendant’s own testimony—as 
the penalty for failure to comply with the notice re­
quirement. These are substantial questions, and they 
are clearly presented by the case of Virgil Jenkins. 
He was not allowed to offer critical evidence/—his own 
testimony—which, if believed by the jury, would have



6

compelled his acquittal. This amicus curiae brief ex­
amines the constitutional questions described above 
which such a practice raises in the hope that it will 
further illuminate the issues now before the Court.

SUMMARY OF ARGUMENT

1. It  is the constitutional right of the defendant, 
secured by the privilege against self-incrimination, to 
refrain from assisting the prosecution in any way in 
securing his own conviction. This absolute right of 
silence reflects our Anglo-American notion of due pro­
cess in criminal proceedings, in which the burden of 
proof is imposed upon the prosecution, with the de­
fendant privileged to stand moot and put the prosecu­
tion to its proof. Only after the defendant has heard 
the prosecution’s case against him need he decide 
whether to waive that privilege and to offer evidence 
of innocence. There are substantial reasons why an 
innocent defendant might prefer not to do so, and it 
is only after the prosecution has rested its case that 
he will be able intelligently to decide whether to waive 
his right of silence. The requirement that the defend­
ant give advance notice of an alibi defense violates 
this Due Process structure, and offends the constitu­
tional protections afforded the accused by the Fifth 
and Fourteenth Amendments by compelling a decision 
in advance of trial as to whether an alibi defense will 
be offered.

2. Even if  the prosecution may compel the defense 
to give advance notice of an alibi defense, it may not



7

foreclose him from offering evidence of Ms innocence 
as the penalty for mere non-compliance with that re­
quirement. The prosecution’s legitimate interests may 
be adequately protected by other, less onerous, means 
(such as a continuance of the trial) ; to deny wholly the 
defendant the right to prove his innocence is a blatant 
denial o f Due Process of Law.

ARGUMENT
INTRODUCTION

This case presents for decision the constitutionality 
of a practice by which a defendant in a criminal case 
forfeits Ms right to offer evidence of his innocence 
(and, in some states Mcluding Kansas, even to testify 
on his own behalf) if he has for any reason failed to 
give notice of his intention to present an “ alibi” de­
fense at his trial.4 In many states, this compulsory 
prior notice must be accompanied by a list of the 
names and addresses o f the witnesses the defense in­
tends to call in support of the alibi defense.

This procedure, which compels the accused to assist 
the prosecution in sealing his conviction, is at the 
least a curious departure from our accusatorial tradi­
tion.5 Moreover, it punishes even non-willful failures

4 At least one state, while requiring advance notice of an inten­
tion to present an alibi defense, protects the interests of the pros­
ecution by allowing for a continuance when the defense, without 
having given notice, seeks to present evidence of an alibi but does 
not prevent the defendant from making the defense. See note 22, 
infra.

5Wh.ile a majority of American jurisdictions manage to do 
without the alibi-notice procedure, the practice is sufficiently 
widespread to justify this Court’s review. In addition to Florida, 
we are aware of fifteen states having alibi-notice requirements.



8

to comply with the notice requirement with total sup­
pression of what may be a controlling aspect o f the 
defense. Surprisingly, its constitutionality has, until 
this case, seldom been questioned. Those few reported 
decisions considering challenges to the alibi statutes 
have, moreover, confined their analysis to only one of 
what we conceive to be two entirely separate aspects 
of their constitutional infirmity; thus there has been 
consideration—and rejection— of the contention that 
the privilege against self-incrimination is violated by 
the requirement that the accused give prior notice of 
his intention to offer an alibi defense, but virtually 
no consideration of whether that requirement, even 
if constitutional, may be enforced by the sweeping 
denial of the defendant’s right to present evidence in 
his defense.6
Bight require, in addition to the notice of an intention to assert 
an alibi defense, a list of witnesses the defendant intends to call. 
Ariz. R. Crim. P. 192(B) (1959); Ind. A nn . Stat. §§1631-33 
(1956); K an. Gen. Stat. A nn. § 62-1341 (1964); Mich. Comp. 
Laws § 768.20-.21 (Supp. 1956): N.J. Rules 3:5-9 (1958): N.Y. 
Code Crim. P. § 295-1 (1958); Pa. R. Crim. Pro. 312, 19 P.S.App.; 
Wis. Stat. § 955.07 (1961). Seven others require only the notice as 
to the intended defense. Iowa Code § 777.18 (1962); Minn. Stat. 
§ 630.14 (1961); Ohio Rev. Code Ann . § 2945.58 (Page 1964); 
Okla. Stat. tit. 22 § 585 (1961); S.D. Code #34.2801 (Supp. 
I960); Utah Code A nn. § 77-21-17 (1964) ; V t. Stat. A nn. tit. 
13, ■§§ 6561-62 (1959).

6The principal decisions of which we are aware are Rider v.
Crouse, 357 F.2d 317 (10t.h Cir. 1966); State v. Stum p,.....  Iowa
..... , 119 N.W.2d 210 (1963); State v. Smetna, 131 Ohio St. 329,
2 N.E.2d 778 (1936); State v. Thayer, 124 Ohio St. 1, 176 N.E. 
656 (1931) (with three judges expressing the view that the alibi 
statute is unconstitutional); People v. Shulenberg, 279 App. Div. 
1115, 112 N.Y.S.2d 374, 375 (1952); People v. Rakiec, 260 App. 
Div. 452, 23 N.Y.S.2d 607, 612-13 (1940) (holding, however, that 
the statute does not apply to the testimony of the defendant but 
only to other witnesses); People v. Schade, 161 Misc. 212, 292 
N.Y.S. 612, 615-19 (1936); Commonwealth v. Vecchiolli, 208 Pa. 
Super. 483, 224 A.2d 96 (1966); State v. KopacJca, 261 Wis. 70, 
51 N.E.2d 495, 497-98 (1952).



9

W e think it particularly fitting that at this time the 
Court undertake a review of the entire question. 
There appears to have been no really serious canvass­
ing of the constitutionality of these alibi statutes 
since this Court made applicable to state criminal pro­
ceedings. the protections of the Fifth Amendment 
privilege against self-incrimination.7 Moreover, recent 
developments of constitutional doctrine put into 
clearer perspective the basis of the constitutional 
claim which, as noted, has never been adequately can­
vassed by the lower courts—whether the defendant 
may be wholly disabled from presenting evidence 
(sometimes, as in the case of amicus, including his 
own testimony)8 establishing a vital defense, simply 
because of his failure to comply with a procedural 
requirement that he give prior notice of that defense.

Perhaps it is well to preface our analysis with the 
observation that we do not urge the Court to test this 
Florida procedure by a subjective standard of fair­
ness. To be perfectly candid, Spencer v. Texas, 385 
U.S. 554 (1967) makes it abundantly clear that an 
argument premised upon subjective notions of fair­
ness bears a heavy burden. W e disclaim any intention 
to appeal merely to what some may think “ to be 
fairer or wiser or to give a surer promise of protec­
tion to the prisoner at bar.” Snyder v. Massachusetts, 
291 U.S. 97, 105 (1934). Nor even do we rely on “ the 
traditional jurisprudential attitudes of our legal sys-

7Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront 
Commission, 378 U.S. 52 (1964).

8In some jurisdictions, including Florida, the defendant’s own 
testimony would not be excluded for failure to give the required 
notice but only that of other witnesses. See note 17, infra.



10

tern” which the dissenters in Spencer thought invali­
dated the Texas recidivist procedure upheld in that 
case. 385 U.S. at 570. In our view, the case against 
Florida's alibi statute and its counterparts in other 
jurisdictions is premised on specific and well-estab­
lished constitutional guarantees. Thus this case need 
not be an occasion for reopening the always fascinat­
ing debate between those who believe that this Court’s 
jurisdiction over state criminal procedures is limited 
“ to specific Bill of Rights’ protections” (Duncan v. 
Louisiana, 391 U.S. 145, 171 (Black, J., concurring) ) 
and those who conceive a limited jurisdiction under 
the Due Process Clause for the protection of substan­
tive “ personal rights that are fundamental” ( Griswold 
v. Connecticut, 381 U.S, 479, 486 (1965) (concurring 
opinion)) or to deal with assertedly unfair criminal 
procedures “ fundamentally at odds with traditional 
notions of due process . . . [which] needlessly '[pre­
judice] the accused without advancing any legitimate 
interest of the State.”  Spencer v. Texas, supra, at 570 
(dissenting opinion). Whatever one’s conception o f the 
reach of the Due Process Clause in such matters, alibi 
statutes such as Florida’s cannot stand, for they violate 
specific, established constitutional guarantees. W e 
turn to an analysis of that infringment.



11

I
THE DEFENDANT CANNOT, CONSISTENTLY WITH THE FIFTH 

AND FOURTEENTH AMENDMENTS, CONSTITUTIONALLY BE 
COMPELLED TO DISCLOSE TO THE PROSECUTION, IN AD­
VANCE OF TRIAL, INFORMATION RESPECTING THE 
NATURE OF THE DEFENSE HE WILL OR MAY ASSERT

This Court has had frequent occasion to recall that 
ours is an accusatorial system and that, unlike the sys­
tems of some other countries, the defendant in a crim­
inal case need do nothing whatever which might in 
any way lead to his conviction. The prosecution must 
“ shoulder the entire load” (8 W igmore, Evidence 317 
(McNaughton rev. 1961), quoted in Miranda v. Ari­
zona, 384 U.S. 436, 460 (1966)); the defendant may 
not be made, in Hawkins’ oft-quoted phrase, “ the de­
luded instrument of his own conviction” . 2 Hawkins, 
P leas of the Crown 595 (8th ed. 1824). Its origins 
may be complex and imperfectly understood; but the 
Fifth Amendment, now fully applicable to state pro­
ceedings,9 clearly reflects not only values fundamental 
bo our system of criminal law but also the very struc­
ture o f that system. The prosecution bears the burden 
of independent investigation, of going forward, and 
of proving the defendant’s guilt beyond a reasonable 
doubt (Morrison v. California, 291 U.S. 82 (1934) ; 
Leland v. Oregon, 343 U.S. 790, 805-6 (1952) (Frank­
furter, J., joined by Black, J., dissenting) ; of. Speiser 
v. Randall, 357 U.S. 513, 526 (1958) ( “ Due process

9gee authorities cited note 7 supra; see also Gardner v. Brod­
erick, 392 U.S. 273 (1968); Spevack v. Klein, 385 U.S. 511 
(1967)- Garrity v. New Jersey, 385 U.S. 493 (1967); Stevens v. 
Marks, ’ 383 U.S. 234 (1966); Griffin v. California, 380 U.S. 609 
(1965); Anderson v. Nelson, 390 U.S. 523 (1968) (per curiam).



12

commands that no man shall lose his liberty unless 
the Government has borne the burden of producing 
the evidence and convincing the fact-finder of his 
guilt.” ) ) ,  unassisted by any irrational presumptions 
(see Tot v. United States, 319 U.S. 4.63 (1943) ; United 
States v. Romano, 382 U.S. 136 (1965) ; Leary v. 
United States, 395 U.S. 6 (1969); compare United 
States v. Gainey, 380 U.S. 63 (1965). The defendant 
bears no duty to prove his innocence. Cf. Garner v. 
Louisiana, 368 U.S. 157 (1951); Thompson v. City of 
Louisville, 362 U.S. 199 (1960). The defendant may 
not be compelled to testify; indeed, he may not even 
be called by the prosecution to the witness stand and 
asked whether he wishes to testify.10

This structure, and the allocation o f burdens which 
it reflects, is fundamental to our jurisprudence. Here 
basic principles o f  Due Process (see Watts v. Indiana, 
338 U.S. 49, 54-55 (1949) (plurality opinion);
Ctilombe v. Connecticut, 367 U.S. 568, 581-83 (1961) 
(plurality opinion) ; Rogers v. Richmond, 365 U.S. 534, 
540-41 (1961) have become “ assimilated” (Cidombe 
v. Connecticut, supra, at 583, n. 25) with the Fifth 
Amendment privilege against self-incrimination. See 
Malloy v. Hogan, 378 U.S. 1 (1964). Consistently 
these cases reflect

“ recognition that the American system of crimi­
nal prosecution is accusatorial, not inquisitorial, 
and that the Fifth Amendment privilege is its

10VIII WiGMORE, Evidence § 2268, pp. 406-08 and n. 6 
(McNaughton rev. 1961); Cephus v. United States, 324 F.2d 893 
(D.C.Cir. 1963); United States v. Housing Foundation of Amer­
ica, 176 F.2d 665 (3d Cir. 1949) ;  People v. Talle, 111 Cal.App.2d 
650 (1952).



13

essential mainstay. . . . Governments, state and 
federal, are thus constitutionally compelled to es­
tablish guilt by evidence independently and freely 
secured, and may not by coercion prove a charge 
against an accused out o f his own mouth.” (Mal­
loy v. Hogan, supra, at 7-8).

The requirement that a defendant give notice to the 
prosecution of his intention to assert an alibi defense 
flies in the teeth o f these principles. It compels him 
to become an unwilling aide to the prosecution, pro­
viding it with information which may assist in his 
conviction. The prosecution, at the point in the pro­
ceedings, when the defendant is required to give no­
tice o f an alibi defense, has progressed far beyond 
merely having “ focused” on the accused ( cf. Escobedo 
v. Illinois, 378 U.S. 478, 491 (1964)); the defendant 
is the target of a determined, adversary deployment 
of the state’s substantial resources in an effort to con­
vict and imprison him. That complex of values safe­
guarded by the Fifth Amendment is infringed when 
he can be required to offer the slightest assistance to 
his adversary.

Moreover, disclosure o f a potential alibi defense 
prior to trial forces the defendant to decide what he 
has not previously been required to decide until after 
the prosecution has been put to its proof: whether he 
will stand mute, exercising his constitutional right of 
silence, or whether he will present evidence—and, 
possibly, personally testify—by way of defense.

The principal argument for pretrial notice rests on 
the assertion that the defendant is in no way forced



14

to waive his constitutional right to remain silent in 
the face o f charges against him, but is only required 
to accelerate the timing of that decision. But in our 
view of the adversary process enshrined in the Fifth 
and Fourteenth Amendments, it is precisely the de­
fendant’s right, to defer that decision until after he 
has heard the State’s case against him.11 While he 
may ultimately elect to offer evidence and testify, the 
prosecution cannot compel him to do so, or accelerate 
the timing of his decision as, for example, by calling 
him to the witness stand. See authorities cited in note 
10, supra. To advance the time at which the defend­
ant must decide whether to raise an alibi def ense vio­
lates this principle.

The violation of constitutional principles is any­
thing but theoretical; it can work a considerable un­
fairness. The defendant may wish to avoid reliance 
on the alibi defense, if possible;12 but often it will

1]lThat right, as we view it, is a component of the Fifth 
Amendment privilege against self-incrimination, though obviously 
it might equally be viewed as a basic principle of procedural due 
process. Note, 76 Harv. L. Rev. 838, 840 (1963). As Mr. Justice 
Frankfurter noted in Culombe v. Connecticut, supra, Due 
Process principles and the privilege have, in this area, become 
“ assimilated/’ See pp. 12-13, supra.

12In this respect, the present case differs from the question 
which is presented by general pretrial discovery against the de­
fendant in a criminal case which is allowed as the price for grant­
ing the defendant discovery against the prosecution. See, e.g., 
F ed. R.Crim.Pro. 16(c). While the constitutionality of that prac­
tice is by no means beyond dispute (see, e.g., Statement of Mr. 
Justice Douglas, dissenting from the transmittal of the 1966 
amendments to the Federal Rules of Criminal Procedure, 39 
F.R.D. 272 (1966), it can arguably be defended on the ground that 
the defendant, by obtaining discovery against the prosecution, can 
at least determine in advance of trial the nature of the case against 
him and is thus in a position to make the kinds of decisions he



15

only after the prosecution has closed its case be in a 
position to judge whether he must run the risks which 
that defense entails,13 But compliance with the alibi 
statute may well compel the defense to put in its alibi 
evidence even though, after consideration of the prose­
cution’s case, it would prefer not to do so. This fol­
lows even though the statute itself does not in terms 
require the defense to introduce the alibi evidence 
which was the subject of its notice to the prosecution,
otherwise could only make after hearing the prosecution’s case-in- 
chief at trial.

It is somewhat ironic that one of the principal arguments fre­
quently heard against allowing discovery against the prosecution 
in a criminal case—-fear that the prosecution’s witnesses will be 
harassed—has not caused comparable pause among the proponents 
of alibi-notice statutes. Yet there is ample reason for concern. No­
tice to the prosecution of an intention to rely on an alibi defense 
will predictably result in the questioning by the prosecutor (or by 
police officers acting under his direction) of the witnesses specified 
by the defendant- as those he intends to call. Even restrained ques­
tioning by the prosecutor or his agents may frequently have a 
coercive impact upon the sorts of individuals of modest background 
who so frequently will be the basis of an alibi defense. It was pre­
cisely this concern that persuaded the California Bar Association to 
oppose an alibi-notice proposal (see note 19 infra) “ on the ground 
that [this] would cause, the harassment a.nd intimidation of alibi 
witnesses by public officers,” (36 Cal State B. J. 480, 487. 
(1961).

lsThe nature of those risks will, of course, vary from case to 
case. For example, (1) the witnesses on which the defendant 
would have to rely might be weak or particularly vulnerable to 
impeachment by proof of pifior felony convictions; (2) estab­
lishment of the alibi might require testimony by the defendant 
himself, and thus a waiver of his privilege with the resulting sub­
jection to impeachment through evidence of prior felony convic­
tions; (3) the alibi might itself require the admission of another— 
uncharged— crime, or (in the case of a defendant on parole or 
probation) admission of conduct constituting violation of condi­
tions of parole or probation; or (4) the alibi, though meritorious, 
may because of the nature of the evidence available to the de­
fendant be potentially unbelievable; a cautious lawyer may be 
reluctant to present to the trier of fact evidence it is not likely to 
accept, with the resultant destruction of the credibility of the 
entire defense.



16

for it will often be the case that the prosecution, in 
presenting its opening statement or case-in-chief, will 
have anticipated the defense in some manner which 
will as a practical matter compel the defense to fol­
low through with the alibi defense lest the jury draw 
an unfavorable: inference from its failure to do so.

Even if the potential prejudice to the defendant 
were considerably less apparent, this alibi-notice pro­
cedure would be cause for grave concern. As the Court 
said in a similar context of the need for vigilance 
where Fifth Amendment interests are concerned, “ il­
legitimate and unconstitutional practices get, their first 
footing . . .  by silent approaches and slight deviations 
from legal modes of procedure.” Boyd v. United 
States, 116 U.S. 616, 635 (1886).

But for the reasons already mentioned, the prejudice 
is substantial. As a consequence of some of those con­
siderations, a defendant considering reliance upon evi­
dence establishing an alibi may feel compelled to fore­
go that defense rather than give advance notice to the 
prosecution in compliance with the statute. Failure to- 
do so in nearly all of the states having alibi rules will, 
however, prevent the defendant from changing his 
mind once the prosecution has rested; he is forever 
barred from, introducing evidence,—often including, as 
we have earlier noted, his own personal testimony—of 
an alibi. Similarly, fear of that terrible sanction may 
compel such a defendant to give notice of the alibi 
before he is in fact in a position to decide intelligently 
whether to make that decision. That obviously was the



17

case here. For that reason, we must now turn to an 
examination of the constitutionality of that sanction.

II
THE DEFENDANT MAY NOT CONSTITUTIONALLY BE DENIED 

THE OPPORTUNITY TO OFFER EVIDENCE, BY HIS OWN 
TESTIMONY ON OTHER WITNESSES, TENDING TO ESTAB­
LISH HIS INNOCENCE, AS A PENALTY FOR NONCOMPLI­
ANCE WITH A NOTICE REQUIREMENT

Even assuming- what we do not concede, namely, 
that the State may constitutionally require a defend­
ant to give the prosecution prior notice of his inten­
tion to offer an alibi defense along with the names 
and addresses o f the witnesses he intends to call— 
this Florida procedure could not stand. For Florida, 
as do most (though not a ll)14 of the States having 
alibi statutes, enforces that procedural requirement 
by denying defendants their right to present evidence 
o f an alibi defense as to which they were required 
but failed to give notice. Our submission, stated sim­
ply, is that a defendant in a criminal case has no 
more fundamental constitutional right than the right 
to offer evidence'—and testify, if  he wishes—on the 
issues which the applicable law makes relevant in the 
case. This right the State may not abridge—indeed, 
wholly deny—for merely failing to comply with a pro­
cedural requirement whose benefits are, at the least, 
minimal and which in any event can be fully vindi­
cated by means far less subversive o f the defendant’s 
Due Process rights. i

i4See infra note 22 and accompanying text.



18

The right to be heard in defense against criminal 
charges is anything but. an exotic constitutional crea­
tion at the penumbra of contemporary jurisprudence. 
To the contrary, it is so fundamental that few would 
dispute; its constitutional stature; a literally unbroken 
stream of decisions o f this Court (paralleled, of 
course, by decisions o f courts throughout this coun­
try) have affirmed that, at a minimum, Due Process 
requires that a defendant in a criminal case “ be pres­
ent with counsel, have an opportunity to be heard, be 
confronted: with witnesses against him, have the right 
to cross-examine, and to offer evidence of his own.” 
Specht v. Patterson, 386 U.S. 605, 610 (1967) ; 
see also In re Oliver, 333 U.S. 257, 273-77 (1948) 
( “ due process of law . . . requires that [the defend­
ant] . . . have a reasonable opportunity to meet [the 
charges] by way of defense or explanation . . . and 
call witnesses in his behalf, either by way of defense 
or explanation” ) ; Oyler v. Boles, 368 U.S. 448 (1962) ; 
In re Gault, 387 U.S. 1 (1967). The recent decisions 
o f this Court specifically applying the various Sixth 
Amendment protections to State criminal proceedings 
add emphasis to the constitutional stature of the right 
to offer defensive evidence. They establish that the 
accused cannot be deprived of the opportunity to 
cross-examine the witnesses against him13 and, more 
importantly for present purposes, neither may he be 
denied the right to compulsory process for obtaining 
witnesses whose testimony might be favorable. Wash­

isPointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 
380 U.S. 415 (1965); Barber v. Page, 390 U.S. 719 (1968).



19

ington v. Texas, 388 U.S. 14 (1967). Similarly, the 
defendant’s right to effectively defend against the 
charges against him, and to offer evidence of his in­
nocence, may not be indirectly infringed by an un­
reasonable denial of a continuance. TJngar v. Samftte, 
376 U.S. 575, 589 (1964).

One need only contrast these imcontradicted expli­
cations of a fundamental constitutional principle with 
the typical application of an alibi rule of the sort 
which Florida has adopted to perceive the grave 
constitutional difficulties presented by such a pro­
cedure. The case of amicus is instructive. Charged 
with participation in an armed robbery perpetrated 
by several individuals, he took the stand to testify 
that he was: elsewhere—in a poolroom to be specific— 
at the time of the alleged offense. That testimony was 
of the gravest importance; if  believed by the jury, it 
would have compelled his acquittal. His counsel, for 
reasons never disclosed on the record, had not given 
notice of the possible defense of alibi as Kansas law 
requires, and amicus’ testimony was interrupted by 
an objection of the prosecutor, which was sustained. 
The defendant’s testimony was thus abruptly termi­
nated, and the jury instructed that it must disregard 
the defendant’s protestations that he was elsewhere 
at the time the alleged offense occurred.16 Thus in 
amicus’ case, the denial of elementary due process 
was compounded by the trial court’s order barring 
the defendant himself from testifying as to facts

16An excerpt from the trial transcript of amicus containing 
this portion of the trial is attached hereto as Appendix “ A ” ,



20

which would establish his innocence. Cf. Ferguson v. 
Georgia, 365 U.S. 570 (1961).17

W e doubt that any justification exists for the out­
right denial o f the right to offer evidence—indeed, 
to testify personally—at the trial on an issue which 
is not only relevant under the applicable law but is 
in fact potentially dispositive of the outcome of the 
case. But even if we were to accept that this most 
fundamental right might be weighed against some 
overriding, compelling state interest, no such counter- 
veiling considerations are present to justify the appli­
cation of so sweeping a denial o f constitutional rights 
for mere non-compliance with a technical requirement 
of notice.

The purpose which alibi statutes or rules such as 
the one before the Court are intended to serve— 
avoidance of surprise and perjurious testimony—is 
unobjectionable (although there is, for the reasons 
stated in Part I, supra, considerable doubt as to the 
State’s constitutional power to achieve that goal by 
compelling the accused to give notice to it prior to> 
trial). Most of these provisions stem from proposals 
made a number of years ago (see Epstein, Advance 
Notice of Alibi, 55 J. Ck im . L.C. & P.S. 29-31 
(1964)), at a time when the federal Constitution had 
not been thought to impose much restraint upon state

17Some states, including Florida, would not bar the defendant 
from testifying even though no notice was given, but would bar 
other witnesses. E.g., F la.R. Crim. Pro. 1.200; State v. Stump,
......... Iowa ..... , 119 N.W. 2d 210 (1963); State v. Thayer, 124
Ohio St. 1, 176 N.E. 606 (1931); People v. Rakiec, 260 App. 
Div. 452, 23 N.Y.S. 2d 607 (1940). Kansas is not so generous.



21

criminal proceedings. The proponents of the alibi- 
notice procedure contended that the cause o f justice 
would be well served by requiring the accused to give 
advance notice to the prosecution of its intention to 
raise an alibi defense; the prosecution might then 
have an adequate opportunity to investigate the facts 
o f the defense and develop evidence o f its own which 
might disprove it. E.g., State v. Thayer, supra; 
Millar, The Modernisation of Criminal Procedure, J. 
Crim . L. 344, 350 (1920). Some doubt has been ex­
pressed as to the necessity and efficacy o f the notice 
requirement,18 and barely more than a quarter o f the 
States have adopted it ;19 further, as will be seen, not 
all o f them routinely deny the accused his right to 
offer evidence of a critical defense as the penalty for 
noncompliance, but rather attempt to enforce that 
policy of disclosure by other means. See note 22, infra, 
and accompanying text.

With the merits of and the necessity for the alibi- 
notice procedure supported by somewhat less than 
overwhelming evidence,, it is appropriate to consider

lsSee, e.g., Note, Is Specific Notice of the Defense of Alibi 
Desirable? 18 Tex.L.Rev. 151 (1946).

19Proposals for an alibi-notice requirement have recently been 
made but not accepted in California (see Calif. Law Rev. Comm., 
Recommendation and Study Relating to Notice of A libi in  
Criminal A ctions (I960)) and in the federal criminal system (see 
Proposed Rule 12A, Fed.R.Crim.Pro., 1962 Draft, 31 F.R.D. 673 
(1963)); that was the second occasion on which an alibi-notice 
requirement was rejected for the federal criminal system, as this 
Court in 1944 struck two alternate alibi provisions from the then 
proposed Federal Rules of Criminal Procedure. Epstein, 'Advance 
Notice of Alibi, 55 J. Crim. L.C. & P.S. 29, 30 (1964). See F ed.R. 
Crim.Pro. 12 (2d Preliminary Draft 1944).



22

whether those limited advantages might adequately 
he secured without depriving the defendant of his 
constitutional right to be heard and to offer evidence 
tending to establish his innocence. E.g., United States 
v. Jackson, 390 U.S. 570, 582-83 (1968); United States 
v. Bobel, 389 U.S. 258, 268 (1967); Dean Milk Co. v. 
City of Madison, 340 U.S. 349, 354-56 (1951); see 
generally Wormuth and Mirkin, The Doctrine, of the 
Reasonable Alternative, 9 U t a h  L . R e v . 254 (1964). 
Such an examination, we submit, convincingly demon­
strates that the goal of preventing unjustifiable ac­
quittals because o f the prosecution's inability to dis­
prove perjurious alibi defenses can adequately be 
protected by means far less destructive of cherished 
constitutional guarantees.20 W e consider some of them 
briefly:

(1) The trial court might punish the wilful disr­
egard  of an applicable rule of procedure by contempt 
—-of either the accused, his counsel, or both. This 
assumes, of course, that the prosecution has a right 
to such notice, an assumption which is disputed in 
Part I, supra. But if  the requirement of notice is 
constitutional, then neither the defendant nor his. 
counsel should be immune from the imposition of

20Some of these alternatives would assist in encouraging the de- 
fense to give prior notice of an intended alibi defense; thus their 
constitutionality turns on whether the defendant can be compelled 
to give any such notice. See Part I, supra. As noted, there are 
grave constitutional doubts as to the constitutionality of that re­
quirement, and some of the alternatives which we are about to 
consider (e.g., continuing the trial) suggest that, if the Fifth 
Amendment question also turns on the availability of a less onerous 
alternative, such an alternative would not be difficult to find.



23

sanctions in the manner by which courts have tradi­
tionally protected their substantial interest in orderly 
procedure.

(2) The trial court might, where the prosecution 
has been surprised by the unannounced raising of an 
alibi defense, continue the trial for a reasonable 
period to allow the prosecution to make whatever 
investigation might be necessary to enable it to meet 
the defense.21 In at least one state,22 the trial court is 
empowered to continue the trial where an alibi de­
fense is raised without prior notice, but does not have 
the power to exclude evidence of alibi. It is difficult 
to conceive of a situation in which the legitimate 
interests of the prosecution would not fully be pro­

21The right of speedy trial, now a constitutional protection ap­
plicable to state criminal proceedings (Klopfer v. North Carolina, 
386 U.S. 213 (1967); Smith v. Hooey, 393 U.S. 374 (1969)), would 
in no way be offended by a brief continuance for this purpose. The 
Sixth Amendment protects only against “ undue and oppressive” 
delays (United States v. Ewell, 383 U.S. 116, 120 (1966)), and not 
against those which are justifiable and reasonable. See, e.g., Har­
rison v. United States, 392 U.S. 219 (1968). There could be no 
reasonable basis for complaint where the defendant’s own failure 
to comply with the statute or rule requiring notice was the occasion 
for granting a continuance.

22See Okla. Stat., Tit. 22, §585 (1961). Iowa has a similar statute, 
but there is judicial authority allowing exclusion of the alibi evi­
dence. See State v. Bourick, 245 Iowa 319, 60 N.W.2d 529 (1953). 
Most states, but apparently not Kansas, at the least allow the trial 
judge discretion to allow the evidence and protect the interests of 
the prosecution by other means such as continuance. See Note, 15 
Stan. L. R ev. 700, 701 & n. 7 (1963). Moreover, there is some 
evidence that even in those states wdiich by statute absolutely bar 
alibi evidence where notice should have been but was not given, 
trial judges ameliorate the harshness of that provision by ignoring 
it. See Note, Is Specific Notice of the Defense of Alibi Desirable?, 18 
Tex. L. Rev. 151, 156 (1940); see Epstein, Advance Notice of Alibi, 
supra, at 36.



24

tected by a continuance, the granting o f which might 
even be made mandatory lest there be any doubt as 
to the willingness of trial judges to grant continu­
ances in the circumstances.

(3) Should the defendant fail to give the required 
notice (and, again, assuming that the requirement is 
constitutional), that violation might be a proper basis 
for declaring a mistrial in circumstances (which, pre­
sumably, would be exceedingly rare) in which simply 
ordering a continuance would not be adequate to 
protect the legitimate interests of the prosecution.23

(4) The prosecutor might be allowed to argue to 
the jury where the facts warrant, that the surprise 
assertion o f an alibi defense (in violation o f the re­
quirement that he give advance notice) prejudiced the 
State’s ability to deal with that defense and, more­
over, must be viewed critically in view of the circum­

23While the ordering of a mistrial could in theory give rise to a 
claim that a retrial would constitute jeopardy in violation of the 
Fifth Amendment (Benton v. Maryland, 395 U.S. 784 (1969)), 
such a contention would seem ill founded. See Gori v. United 
States, 367 U.S. 364 (1961). Such a ease would not involve any of 
the factors which might render a retrial following a mistrial as a 
violation of the double jeopardy clause, such as a mistrial ordered 
because of wrongful conduct on behalf of the prosecution or where 
the purpose of the trial judge was to “ help the prosecution, at a 
trial in which its case is going badly, by affording it another, more 
favorable opportunity to convict the accused.” (Id., at 905). To 
the contrary, our hypothetical mistrial would be the response to the 
defendant’s failure to comply with the requirement that he give 
advance notice of an alibi defense, in the rare case where no other 
remedy would suffice. Particularly when viewed as an alternative 
to the* far harsher procedure presently practiced— exclusion of the 
defendant’s alibi evidence altogether— such an order should not be 
deemed a denial of due process. In any event, it would be a highly 
unusual case in which the other alternatives discussed above would 
not fully protect the interests of the prosecution.



25

stances.24 Similarly, an instruction to that effect from 
the trial judge might be in order.

The foregoing alternatives-—which may well be con­
siderably short o f exhaustive—-would, singly or in 
combination, provide full protection for the legitimate 
interests of the prosecution which are said to be the 
basis for the alibi-notice requirement. There is, plainly 
and simply, no possible justification for a sanction 
which wholly denies the opportunity to be heard on 
a vital aspect o f his defense. The alibi-notice provi­
sions of Florida and Kansas—and the other jurisdic­
tions which similarly deny the defendant the right to 
be heard—are fundamentally arbitrary, viciously 
choking off the defense as a penalty for what is at 
most a procedural omission.

The unfairness o f that approach is particularly 
apparent when viewed against the background of the 
realities of criminal law’ administration in this coun­
try. A substantial number of defendants in criminal 
cases are indigent or nearly so. They may be repre­
sented by court appointed counsel, a Public Defender, 
or one o f the attorneys whose office is the local crimi­
nal court and whose practice is operated, as the recent 
Presidential Crime Commission’s Task Force on the 
Administration of Justice phrased it, on “ a mass pro­
duction basis.”  Task F orce R eport: T he Courts 32 
(1967). Frequently, counsel will have had little or no 
opportunity to study the case much in advance o f trial;

24Such a comment would not violate the rule of Griffiin v. Cali­
fornia, 380 U.S. 609 (1965) if, contrary to the argument of Part I, 
supra, the alibi-notice requirement is not held to violate the Fifth 
and Fourteenth Amendments.



26

it is not uncommon for client and. counsel to meet 
just before the trial.25 Inadvertanee or the errors of 
counsel may account for a substantial proportion of 
the instances in which the required notice is not given 
and the alibi defense thereby lost forever; but it is 
the defendant, not his lawyer, who must pay the price. 
Compare Fay v. Noia, 372 U.S. 391, 439 (1963). Thus 
a penalty—the loss o f the right to present an alibi 
defense— which would be unfair even as to a defend­
ant who deliberately concealed his intention to present 
an alibi defense is also indiscriminately applied to the 
non-wilful defendant who, perhaps through the blun­
ders of counsel or due to his late entry into the case, 
fails to give the required notice.26

25See, e.cj., Oaks and Lehman, The Criminal Process of Cook 
County and The Indigent Defendant, 1966, Univ. op III. L. F orum, 
584, 693 (1966); The Challenge of Crime in a F ree Society, 128- 
29 (1967):

In many lower courts defense counsel do not regularly ap­
pear, and counsel is either not provided to a defendant who 
has no funds; or, if counsel is appointed, he is not compensated. 
The Commission has seen, in the “ bullpens” where lower court 
defendants often await trial, defense attorneys demanding 
from a potential client the loose change in his pockets or the 
watch on his wrist as a condition of representing him. Attor­
neys of this kind operate on a mass production basis, relying on 
pleas of guilty to dispose of their caseload. They tend to be 
unprepared and to make little effort to protect their clients’ 
interests.

26This case involves the baldest of infringements of the right of 
an accused to be heard and to present evidence. Recognition of the 
unconstitutionality of that infringement surely does not imply that 
a federal question would be presented by the even-handed applica­
tion of traditional rules of evidence as to admissibility, any more 
than the application of the Sixth Amendment right of confrontation 
to state criminal proceedings (see authorities cited note 15, supra) 
has superseded state hearsay rules with a federal evidence code (cf. 
United States v. Augenblick, 393 U.S. 348, 355-56 (1969)), or the 
right to compulsory service of process supersedes “ nonarbitrary 
state rules” regarding the capacity of a witness to testify. Wash­
ington v. Texas, 388 U.S. 14, 23 n.21; see also id., at 24-25 (Harlan, 
J., concurring).



27

CONCLUSION

For the reasons stated in Part I  of this brief, the 
prosecution is not entitled to the assistance of the de­
fense in the preparation of its case for trial, and may 
not require him to give notice o f and information 
about the intended defense. The defendant has a 
constitutional right to defer its decision as to reliance 
upon an alibi defense until after he has heard the 
prosecution’s case against him.

Moreover, even if the defendant can constitutionally 
be compelled to give such notice, he may not be 
deprived o f his constitutional right to be heard and 
to present relevant evidence tending to establish his 
innocence for mere non-compliance with the notice 
requirement; the prosecution’s legitimate interests 
may adequately be protected by means far less subver­
sive o f the defendant’s rights.

For these reasons, the conviction of the petitioner 
should be reversed.

Dated: January 20, 1970.
Respectfully submitted,

J ack Greenberg,
Michael Meltsner,
J erome B. F alk, J r.

Attorneys for Amicus Curiae, 
Virgil Jenkins.

(Appendix “ A ”  Follows)



Appendix “ AM



Appendix “ A ”

EXCERPT FROM THE TRIAL TRANSCRIPT OF THE STATE OF 
KANSAS VS. THOMAS KELLY AND VIRGIL JENKINS, CASE 
NO. CR 4276-67, DISTRICT COURT OF SEDGWICK COUNTY, 
KANSAS, DIVISION SIX, OCTOBER 30, 1967, pp. 155-161:

The Court: The defendant, Mr. Jenkins, has indi­
cated that he would like to testify in his own behalf.

The Court: All right, bring the jury in, Mr. 
Knott.

The B ailiff: Jury is all present and accounted for, 
Your Honor.

The Court.: Very well, Mr. Knott. Do you wish to 
make an announcement, Mr. Hayes?

Mr. Hayes: Yes, Your Honor, the defense moves 
to reopen its case and would like to present evidence 
to the court and jury.

The Court: Very well. Do you have any objection, 
Mr. Focht %

Mr. Focht: No, Your Honor.
The Court: Very well, the case will be reopened.
Before proceeding, Mr. Hayes, I wish to advise the 

jury that the State of Kansas and the defendants 
have entered into the following stipulation: That on 
the night in question, July 26, July 25th, 1967, the 
1965 Mustang in question was titled in the name of 
Burney Henderson Smith, that at the time the auto­
mobile was stopped on July 26, 1967, the driver of 
the automobile was Burney Henderson Smith.

Your witness, Mr. Hayes.
Mr. Hayes: The defense will call Mr. Jenkins.



n

The Court: Very well. Mr. Jenkins, will you come 
forward, sir?

V IR G IL  JENKINS
called as a witness; on his own behalf, after having 
first been duly sworn, testifies as follows:

Direct Examination
by Mr. Hayes:

Q. State your name and address for the court, 
please ?

A. Virgil Jenkins.
Q. And where were you residing on the 25th o f 

July, 1967?
A. 3212 Olive, Kansas City, Missouri.
Q. Now, did you on about the 26th of July, 1967, 

come to the City o f Wichita?
A. Yes.
Q. And what mode of transportation did you 

come?
A. ’65------
The Court: Excuse me, gentlemen. I would like 

to have counsel approach the Bench, please. Have you 
advised Mr. Jenkins that he doesn’t have to testify?

Mr. Hayes: I ’ll do so in my examination. Of
course, he knows; I have talked to him about it.

The Court: Well, let’s do it in your examination.
Q. (By Mr. Hayes) You understand, sir, you 

don’t have to testify in your own behalf ?
A. Yes.
Q. You understand that. You could invoke the 

Fifth Amendment and thereby exempt yourself from1 
any testimony in this case?



m

A. Yes;, sir.
Q. Is it your desire to freely—is it your free and 

voluntary desire to testify in this case in your own 
behalf ?

A. Yes.
Q. And do you understand that by doing so you 

waive the Federal immunity?
A. Yes.
Q. And subject yourself to------
A. Yes.
Q . ------ questions?
The Court : You understand also, Mr. Jenkins, 

that anything you say will be, can and will be used 
against you?

A. Yes.
The Court: All right.
Q. (B y Mr. Hayes) Do you also understand, Mr. 

Jenkins, that anything you say may be held against 
you or for you? I  appreciate that.

A. Yes.
Q. All right. What mode of operation was used 

to come to the City of Wichita?
A. 1965 Mustang.
Q. How, would you tell the court in your own 

words what happened after you arrived in the City 
of Wichita?

A, Well, we got here about 9, about 9 o’clock be­
cause we had car trouble. There were four of us at 
the time, Burney Smith, Thomas Kelly, a guy named 
McGee, and myself. We were supposed to come down. 
Smith, he had some, kin down here. Well, my folks 
stayed here, and I wasn’t working down here, and



iv

Mr. Kelly decided to come down with us, so we rode 
around for a while and started to drinking. Me and 
Kelly got out on—there is a pool hall between W a­
bash and Ohio, on Murdock.

Q. Huh-uh.
A. W e got out down there about, I  guess about 

12 o’clock, which they have a house in the back that 
is open all the time. They play records, and——

Q. Yes.
A. So Smitty and this other guy left, and I  don’t 

know, it was about something to three when he come 
back to pick us up. When he come back he was by 
his-self, so we got in the car, and we were supposed 
to be going to Oklahoma when we left Wichita, and 
when we got out on Kellogg on Bluff, that is when 
we got stopped.

Q. I see. All right, you have been in court and 
heard the testimony of the police officers who ap- 
peard?

A. Yes.
Q. And were you stopped substantially as they 

have testified tod
A. Yes.
Q. Then you’re stating that between the hours of 

2 and 3 o’clock, or after 3 o’clock you were on Mur­
dock Street?

A. No, between 12. W e got out down there about 
12 o’clock.

Q. All right.
A. Until he come back, picked us up it was some­

thing to 3:00.
Q. But you were in the vicinity of Murdock and 

Wabash?



V

A. Ohio, the place is between Ohio and Wabash.
Q. Yes, I know where it is.
A. Yes.
Mr. Foeht: Your Honor, I  object to that reality

and move that all be stricken. That is alibi with no 
notice of alibi having been given, and under the case 
o f State v. Rider alibi testimony from a defendant it 
must be given. The state has to be given at least ten 
day’s notice.

Mr. Hayes: May it please the Court, it’s also the 
law of Kansasi that evidence which is subject to be 
objected to must be objected to at the time that evi­
dence is given, and that a motion to strike testimony 
that has been given to which there has been no objec­
tion comes too late, and------

Mr. Foeht: You cannot know it’s going to be alibi 
until you hear it.

Mr. Hayes: Actually, there should be no objection 
to the jury knowing what the facts are. I  can’t see 
what the state would object to.

Mr. Foeht: Your Honor, the purpose o f the alibi 
statute is to give the State of Kansas a chance to 
check it. I f  a person intends to offer evidence that 
they were at some other place at some other time, 
then they must follow the statutes. In the case of 
State v. Gene Austin Rider in the Supreme Court 
this court held that that included the defendant, and 
if  he is going to offer testimony he was some place 
else at another time, he must serve notice on the state 
so that the alibi can be checked, and that has not 
been done. I  ask the testimony all be stricken and 
the jury asked to disregard it.



vi

Mr. Hayes: May it please the Court, it is also the 
law in the Supreme Court, Bradey v. Maryland [sic], 
that the purpose of a trial is to find out what happened 
and that procedural technicalities are to be waived 
in lieu of constitutional rights, and, therefore, if 
there is a conflict between procedural rights and the 
basic constitutional rights, his constitutional rights 
take precedence, and that procedure technicalities 
should not be adhered to to the deprivation of a per­
son whose life is in jeopardy.

The Court: Ladies and Gentlemen of the Jury, 
you are advised that the testimony of Yirgil Jenkins 
is stricken from the record and you are advised to 
disregard it.

Is there anything further, Mr. Hayes? Ho you have 
any further questions, Mr. Hayes?

Mr. Hayes: I ’m just------ by virtue of the court’s
statement I ’m just thinking.

The Court: I ’m going to excuse the jury.