Abe Fortas

“ There are few areas which call more for prudent experimentation and continuing study. I can find nothing either in the Constitution or in this case which would compel, or justify, the imposition upon the States of the very broad disclosure rule now proposed.
The unarticulated basis of today's disposition, and of the disparate reasons which accompany it, is quite evidently nothing more than the Court's uneasiness with these convictions, engendered by post-trial indications of the promiscuity of this unfortunate girl. ”

“ Petitioners were on trial for their lives. The information was specific, factual, and concrete, although its implications may be highly debatable. The charge was rape, and, although the circumstances of this case seem to negate the possibility of consent, the information which the State withheld was directly related to that defense. Petitioners' fate turned on whether the jury believed their story that the prosecutrix had consented, rather than her claim that she had been raped. ”

“ Whether Rule 16 is adequate even for its purposes is the subject of differences of opinion. But it does not purport to exhaust the prosecution's duty. Mr. Justice HARLAN apparently finds no inconsistency between proscription of the prosecution's knowing use or acquiescence in the use of perjured testimony [2] and Rule 16's silence on that subject. I find none in the requirement, recognized by this Court in Brady v. State of Maryland, supra, that the State apprise the defendant of information of the sort described herein, and the Rule's omission of such a requirement. ”

“ If the defense does not know of the existence of the evidence, it may not be able to request its production. A murder trial-indeed any criminal proceeding-is not a sporting event.
Mr. Justice HARLAN, whom Mr. Justice BLACK, Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.
The disposition of this case, the product of three opinions, none of which commands the votes of a majority of the Court, is wholly out of keeping with the constitutional limitations upon this Court's role in the review of state criminal cases. For reasons that follow, I dissent. ”

“ Perhaps more evidence of Joyce's mental condition, and of the knowledge of Montgomery County authorities of that condition, could conceivably have been introduced; but it is true of all criminal prosecutions, federal and state, that some fragments of fact broadly pertinent to the issues of the trial do not reach the record. In any event, the petitioners themselves have apparently never challenged any of these rulings either before the Maryland Court of Appeals or in this Court. ”

“ Further, since the evidence at trial was merely silent on these issues, and did not include inconsistent statements, this evidence presumably would not have been admissible on that basis to impeach the credibility of these witnesses. Finally, although Maryland permits the admission of evidence of a prosecutrix' general reputation for immorality, it does not permit evidence of specific acts of intercourse. Shartzer v. State, 63 Md. 149; Humphreys v. State, 227 Md. ”

“ Solomon was prevented from speculating only whether this condition might have affected the girl's credibility as a witness, an issue the court noted, which is for the jury, and not an expert witness, to determine. Finally, petitioners adduced very substantial evidence of Joyce's sexual history, all of which was pertinent to the court's determination whether she might have been suffering from mental illness. ”

“ Discovery under Rule 16, even as now amended, is restricted by a number of carefully drawn limitations, each intended to 'guard against possible abuses.' Notes of the Advisory Committee on Rules, 39 F.R.D. 176. ”