Handling authorities apparently against you.

JurisdictionUnited States

Section 53. Handling authorities apparently against you.—One of the most difficult problems for the brief-writer is how to deal with decisions that appear to be against him—and that quite frequently live fully up to their appearances.

Some approaches to this problem have already been discussed in the preceding chapter; see Sections 34 and 35, above.

One solution is to ignore the offending precedent—always provided, of course, that it is not a square holding—and to deal with it sub silentio. In the Haupt treason case,61 we—that is to say, Government counsel—were faced with some very strong and, as we believed, very wrong language from the recently decided Cramer treason case.62 See Section 35 (e), supra. We felt that we had a winning case on the facts, that Haupt was strong in every respect where Cramer had been weak. So we undertook to chart an independent course through the historical and judicial materials, which would show beyond peradventure that the language of the Cramer case was wrong—but which carefully avoided saying so directly. For the text of the effort, see Point II of the Government's brief in that case;63 for the text of the result, see the opinion of the Court, and particularly the concurring opinion of Mr. Justice Douglas, who had earlier written the dissent in Cramer.64

(I should say parenthetically here that, although I fully appreciate the reluctance of any reader to haul down numerous volumes from library shelves, there is really no way of learning the techniques of advocacy other than by the detailed examination of briefs and opinions, plus—ideally—actually hearing the cases argued. The older reporters knew this, and so set down the points of counsel as well as the opinion of the court.)

Another solution is to attack the offending precedent boldly and frontally. As has been indicated above, Section 35 (e), this is an operation that engenders much resistance. It is really successful only when the precedent is generally acknowledged to be on its last legs.

The third way is to distinguish it, a process that is virtually as old as the common law itself. As early as 1310 and 1314, "The fascinating game of 'distinguishing' is already popular,"65 and the Serjeants even then are recorded in the Year Books as saying "Non est simile," "N'est pas semblable," "Not a like case." They, no less than their successors six and a half centuries later, were asking themselves the question, "How can a lawyer most effectively distinguish a case apparently against him?"

The soundest advice on this score is to distinguish the offending precedent boldly: go on a broad ground, don't get bogged down in finicky details, and don't go in for overrefined analysis.

On this point also I found the Haupt case66 most instructive —in teaching me what not to do in the future.

In that case, twelve overt acts of treason had been submitted to the jury, which returned a general verdict of guilty. We argued first that each of the twelve overt acts was supported by the evidence of the required two witnesses.67 We then went on to argue that, even if some of the overt acts should be deemed not to have been proved by two sufficient witnesses, the judgment of conviction must still be affirmed.

That argument was primarily based on the proposition that, as a matter of the substantive law of treason, it was sufficient to sustain a conviction if, on review subsequent to trial, one overt act charged had been proved by two witnesses, even though additional overt acts alleged in the indictment were not so proved. Such had been the English law since 1660;68 the earliest American decision was the same;69 and every modern American jury considering a case of treason had uniformly been charged to the same effect.70 An unbroken rule of law from 1660 to 1943, continuous over a period of 283 years, should have been fairly persuasive. But the point was not briefed in the Cramer case, which came to the Supreme Court in 1945. There the Court held that two of the three overt acts submitted to the jury had been insufficient, after which it went on to hold, in a footnote:

The verdict in this case was a general one of guilty, without special findings as to the acts on which it rests. Since it is not possible to identify the grounds on which Cramer was convicted, the verdict must be set aside if any of the separable acts submitted was insufficient. Stromberg v. California, 283 U. S. 359, 368; Williams v. North Carolina, 317 U. S. 287, 292. * * * 71

The way that this footnote should have been dealt with in the Haupt case was as follows: First, the prosecution should have pointed out that for 283 years the rule of substantive law in treason cases had been just the contrary; that in the then fairly recent Stephan case72 the conviction was sustained on appeal notwithstanding the Sixth Circuit's determination of the insufficiency, as a matter of two-witness proof, of four of the ten overt acts submitted to the jury; and that none of the voluminous briefs filed in the Cramer case had brought any of these authorities to the Supreme Court's attention. (In view of the disposition made of the Cramer case, the way was probably not open for an argument that the holding, having been contained in a footnote, was not to be regarded as a precedent.)73

Second, and here is the nub of the matter, the Stromberg and Williams cases, cited in the Cramer footnote, should have been distinguished on a broad ground, viz., that they dealt with the Supreme Court's review of Federal questions coming up from State courts, whereas what was here presented was appellate review of the sufficiency of a conviction for treason, which involved a well-settled rule of substantive criminal law.

I say, that is the way the Cramer footnote should have been dealt with. Unfortunately, I went into far more detail. After stating the rule in the treason cases, I went on to discuss some analogous general rules, viz., that, in mail fraud and conspiracy cases, a verdict stands if a single overt act has been proved, even though the others may be bad; that, in any kind of criminal case, a general verdict on an indictment containing many counts is supported by a single good count; and, similarly, with a general sentence. I argued that, since special verdicts are not generally employed in criminal cases, a contrary rule would mean that a defendant could never be charged with more than one overt act of treason except at the risk of acquittal if a single additional overt act submitted to the jury failed of proof; "that is to say, the more active the...

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