Sound analysis of the legal problem in argument on the law.

• Jurisdiction: United States

Section 34. Sound analysis of the legal problem in argument on the law.—We come now to the body of the brief, the Argument proper. If and to the extent that a question of law is to be argued, the essential for an effective brief is that the legal problem involved be carefully and soundly analyzed.

First, the legal problem of the case must be broken down into its component parts, to the end that the underbrush, so to speak, may be cleared away, and the vital issues exposed.

Next, the brief-writer must determine which propositions constitute the principal issues, and which only the subsidiary ones.

Finally, when there are alternative propositions, any one of which is sufficient to prevail, the brief-writer must decide in what order he should present his points.

First. Two recent examples will serve to explain and to illustrate what I mean by the kind of analysis that clears away the underbrush.

(a) In the Benanti case,⁸² State officers, acting in full accordance with State law, tapped the telephone of one suspected of violating the State narcotics laws. In consequence of the information thus obtained, the defendant's car was stopped; the officers, however, found no narcotics but instead discovered alcohol in cans that lacked the stamps required by Federal law. The appropriate Federal officials were notified, a Federal prosecution followed, but it was not until the cross-examination of one of the State officers at the trial that the prosecutor learned that there had been a wiretap. Defendant's counsel then made a motion to suppress, which was denied, and defendant was convicted. He urged the denial of his motion as a ground of appeal, but to no avail; the Second Circuit said:

We can find no tenable distinction in principle between the rule of policy governing the admissibility in federal courts of evidence illegally obtained by state officers through an unlawful search and seizure, without participation or collusion by federal officials, and the rule of policy which should govern the admissibility of evidence obtained by state officials under similar circumstances in violation of the federal statute against wiretapping. On the contrary, as Judge Learned Hand, speaking for this Court, observed in United States v. Goldstein, 2 Cir., 120 F. 2d 485, at page 490, "it would be a curious result, if a violation of the section were more sweepingly condemned than a violation of the Constitution." The Supreme Court in affirming, Goldstein v. United States, supra, pointed out the limited scope of the rule requiring the exclusion of unconstitutionally obtained evidence, and said, "We think no broader sanction should be imposed upon the Government in respect of violations of the Communications Act." 316 U. S. at page 121, 62 S.Ct. at page 1004. Apart from this authority, surely it cannot be that the violation of a federal statute calls forth implied sanctions more pervasive than those formulated by the Supreme Court to compel obedience to a constitutional mandate.⁸³

The foregoing had a most plausible ring, but was it sound? Was the analogy a correct one? In a reply brief filed in support of his petition for certiorari, petitioner argued that—

the question is not whether, as an original proposition, a violation of a statute is to be more sweepingly condemned than a violation of the Constitution (L. Hand, J., in United States v. Goldstein, 120 F. 2d 485, 490 (C.A.2), affirmed, 316 U. S. 114), it is rather whether the statute has a more comprehensive reach by its clear terms than constitutional provisions of limited (Fourth Amendment) and uncertain (Fourteenth Amendment) application.

After certiorari was granted, petitioner made a one-point argument, with several sub-headings; only those bearing on the foregoing analysis of the question are here set out:

Evidence obtained in violation of Section 605 of the Federal Communications Act, by any person whosoever, is inadmissible in a federal prosecution in a federal court.

A. A state officer participating in an illegal search and seizure does not violate federal law, whereas a state officer engaged in wiretapping does.

B. Wiretapping evidence obtained by state officers and turned over to federal officers for use in a federal prosecution is inadmissible in a federal court.

C. The terms of Section 605 of the Federal Communications Act render inapplicable the "silver platter" doctrine.

The Supreme Court adopted the foregoing argument, saying:

Furthermore, confronted as we are by this clear statute, and resting our decision on its provisions, it is neither necessary nor appropriate to discuss by analogy distinctions suggested to be applicable to the Fourth Amendment. Section 605 contains an express, absolute prohibition against the divulgence of intercepted communications. Nardone v. United States, 302 U. S. 379, 382. * * * ⁸⁴

Otherwise stated, the underbrush to be cleared away was the assumption that a constitutional provision necessarily has a broader reach than a statutory one. Once this deceptively facile assumption was placed against the actual terms of each provision, it promptly evaporated. The moral is that the brief-writer should never let himself be beguiled by any phrase, no matter how neatly it may be turned.⁸⁵

(b) Another example of essential preliminary analysis may be found in the second hearing of the first cases dealing with the validity of trials by court-martial of civilian dependents, Reid v. Covert and Kinsella v. Krueger.⁸⁶

In its original opinion, the Supreme Court had relied heavily on the view that such trials involved a cession of jurisdiction by the foreign nations where the trials had taken place,⁸⁷ and had in consequence concluded that there was no need to examine the power of Congress, under Article I, Section 8, Clause 14, of the Constitution "To make Rules for the Government and Regulation of the land and naval Forces."⁸⁸ As one of the non-concurring justices remarked, "The plain inference from this is that the Court is not prepared to support the constitutional basis upon which the Covert and Smith courts-martial were instituted and the convictions were secured."⁸⁹ Or, more realistically if less politely stated, there were not enough votes to uphold the conviction under Clause 14.

A petition for rehearing was duly filed; it is set forth in Chapter XIII, infra, pp. 432-440. But the basic problem of how to focus the Court's attention on the Constitution, on Clause 14, and away from the allurement of international affairs, was not thoroughly thought through until after the rehearing had been granted ⁹⁰ and a new brief was in course of preparation. The principal point to be made was that "Nothing in the Constitution of the United States authorizes the trial of civilians by court-martial in time of peace and not in occupied territory." But first the jurisdictional underbrush needed to be cleared away. Accordingly, the first point on behalf of the dependent wives was set forth as follows:

I. The consent of England and Japan to the exercise of American military jurisdiction within their territories in respect of offenses committed therein did not and could not invest American courts-martial with jurisdiction to try particular persons.

A. The territorial sovereign does not confer jurisdiction on the personal sovereign, but simply consents to the personal sovereign's exercise of jurisdiction; and the scope of the latter's jurisdiction depends, not on the territorial sovereign's consent, but on the personal sovereign's law.

B. The American military jurisdiction asserted in the present case did not purport to be conditional, but was rested on an assumed American power.

C. If, as a matter of American law, including American constitutional law, American courts-martial have no jurisdiction to try particular civilians, such courts-martial cannot by treaty or international agreement be given a wider jurisdiction, for the reason that no treaty can prevail over specific constitutional guarantees, in this instance the right to trial by jury.

The argument under IA was then set out with a series of examples, each derived from an actual case, much as a teacher would expound propositions in a classroom. In the interest of brevity, only the summary of that argument is copied from the brief.

I. A. The territorial sovereign does not confer jurisdiction on the personal sovereign, but simply consents to the personal sovereign's exercise of its own jurisdiction; and the scope of the latter depends, not on the territorial sovereign's consent, but on the personal sovereign's law. Thus, if a ship of Country A is in the territorial waters of Country B, and a homicide is committed on board by a member of the crew, primary jurisdiction belongs to the territorial sovereign, so that the territorial sovereign's claim to trying the offender prevails. Wildenhus's Case, 120 U. S. 1. But if the territorial sovereign is content to let the personal sovereign proceed with the trial, the latter can do so, thus establishing that the territorial sovereign's jurisdiction is not exclusive but only primary. United States v. Flores, 289 U. S. 137. If, however, the personal sovereign's law is insufficient to reach the offense, then the territorial sovereign's consent is ineffective to prevent the offender's going free; that course necessarily follows if the courts of the personal sovereign lack jurisdiction of the offense (United States v. Wiltberger, 5 Wheat. 76) or if the particular court of the personal sovereign lacks jurisdiction of the person (Toth v. Quarles, 350 U. S. 11). Thus the assumption underlying last June's opinions, that there was a relinquishment of jurisdiction by England and Japan which automatically empowered the United States to try these civilian women by court-martial, is shown to be wholly untenable.

A majority of the Supreme Court was persuaded by this analysis, and although the justices differed as to the scope of their...