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June 9, 1958

Henry W. GRUNEWALD, Daniel A. Bolich and Max Halperin, Defendants

The opinion of the court was delivered by: HERLANDS

Can the Government properly introduce into evidence as admissions binding solely on defendant Halperin portions of Halperin's testimony given upon the first trial?

On Friday, the 6th of June, the prosecution stated outside the hearing and presence of the jury that it intended to offer into evidence during the course of the present trial certain portions of defendant Halperin's testimony given at the first trial. Such prior testimony would be offered solely against Halperin and not against Grunewald and Bolich.

 In behalf of Halperin it was argued by his counsel that such testimony would be irrelevant, that the introduction of such testimony by the prosecution would constitute an indirect violation of Halperin's Fifth Amendment privilege by putting pressure upon him to take the stand at the current trial; and, finally, that in view of the Supreme Court's reversal of Halperin's conviction at the first trial upon the ground, inter alia, that he had been improperly cross-examined and in view of the circumstance that under the doctrine of verbal completeness Halperin would ordinarily have the right to put in all of the other portions of his prior trial testimony that would have a contextual and qualifying relationship to the portions introduced by the Government, and in view of the alleged further circumstance that the doctrine of verbal completeness cannot be effectively recognized herein because of the commingling of improper prior testimony with proper prior testimony the Government cannot upon this trial put into evidence the excerpts of Halperin's prior testimony that the Government selects.

 For the following reasons the Court holds to the view that such prior trial testimony of Halperin is properly admissible, assuming it otherwise satisfied the standards of relevancy and materiality, and that in order to protect the rights of Grunewald and Bolich the Court will instruct the jury that such prior testimony is being admitted only as against Halperin and should not be considered by the jury as against Grunewald and Bolich.

 The doctrinal trend in the modern law of evidence is towards full disclosure and greater admissibility. See McCormick, Evidence 1954, page XI. A definite policy in favor or admissibility has been announced by the Court of Appeals for the Second Circuit. See United States v. Apuzzo, 2 Cir., 1957, 245 F.2d 416, 420-421. A countervailing force arises out of the operation of a constitutional or statutory privilege that may render evidence either unobtainable (United States v. Miranti (United States v. Bando), 2 Cir., 1958, 253 F.2d 135; United States v. Trigilio, 2 Cir., 255 F.2d 385) or inadmissible (Benanti v. U.S., 1957, 355 U.S. 96, 78 S. Ct. 155, 2 L. Ed. 2d 126; Grunewald v. United States, 1957, 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931).

 That result is sometimes phrased in terms of the canon that constitutional privileges and civil liberties should be liberally construed. See United States v. Hoffa, D.C.S.D.N.Y.1957, 156 F.Supp. 495, 514. In the particular application of these generalized principles the Court is called upon to weigh and appraise the relative values of the competing policies and logic in the factual context of the specific case.

 How then should the question of the choice of values be resolved in the case at bar? We turn to the specific facts as the first point of inquiry. Defendant Halperin voluntarily took the stand in his own defense at the first trial before Judge Dawson. Defendant Halperin not only was an experienced lawyer himself but also had the advice and representation of eminent trial counsel, in making the decision to testify. This reasoned and deliberate choice constituted a waiver of Halperin's Fifth Amendment privilege with respect to the testimony so given. That waiver was not conditioned upon a limited use of the testimony. The Court holds that the testimony was not subject to defeasance at the end of the first trial. The reasonableness of that conclusion may be tested by considering the more familiar case of a witness who is subpoenaed before the Grand Jury and is, we will assume, advised of his Fifth Amendment privilege. If the witness proceeds to testify, his Grand Jury testimony can thereafter be used against him as part of the prosecution's direct case upon the trial of an indictment against the witness. 8 Wigmore Third Edition, Section 2363, page 727, cases collected at page 727, note 2, and 1957 pocket supplement, page 254.

 A fortiori, testimony given by a defendant as a plenary hearing where he is not summoned as a witness by the Government, where there are the judicial safeguards of an adversary proceeding and where the defendant has the aid of counsel, is admissible in evidence upon the prosecution's direct case.

 In United States v. Yates, D.C.S.D.Cal.1952, 107 F.Supp. 408, at page 411, District Judge Mathes said:

 'On the other hand, if defendant Yates should not elect again to take the stand, her entire testimony at the first trial might then be read to the jury by the plaintiff, either as admissions by the defendant, 2 Wharton, Criminal Evidence, § 679 (11th ed. 1935); see Jackson v. State, 1925, 29 Okl.Cr. 429, 234 P. 228, 229; West v. State, 1922, 24 Ariz. 237, 208 P. 412, 416; People v. Thourwald, 1920, 46 Cal.App. 261, 189 P. 124, 126-127 State v. King, 1917, 102 Kan, 155, 169 P. 557, 558, or under the reported-testimony exception to the hearsay rule. See Mattox v. United States, 1895, 156 U.S. 237, 240-244, 15 S. Ct. 337, 39 L. Ed. 409; Smith v. United States, 4 Cir., 1939, 106 F.2d 726, 728; American Law Institute, Model Code of Evidence, Rule 511 (1942).

 'The defendant's testimony at the first trial being voluntarily given, no claim of privilege against self-incrimination as to such reported testimony could be raised. Caminetti v. United States, 1917, 242 U.S. 470, 493-495, 37 S. Ct. 192, 61 L. Ed. 442; United States v. Gates, supra, 176 F.2d (78) at page 79; see Johnson v. U.S., 1943, 318 U.S. 189, 196, 63 S. Ct. 549, 87 L. Ed. 704; cf. Raffel v. United States, 1926, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054.'

 In Warde v. United States, 1946, 81 U.S.App.D.C. 355, 158 F.2d 651, in affirming the defendant's conviction, the Court of Appeals said:

 'Testimony of appellant Walling at a previous trial, together with bank statement to which it related, were rightly admitted since his testimony had some tendency to establish his guilt. Milton v. United States, 71 App.D.C. 394, 110 F.2d 556.'

 In Milton v. United States, 1940, 71 App.D.C. 394, 110 F.2d 556, at page 560, the Court of Appeals in ...

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