Hugo Black

“ Whether evidence has been compelled is, of course, a triable issue of fact. And the constitutional command not to compel a person to be a witness against himself, like other issues of fact, must be determined by a resolution of all facts and the 'totality' of them offered in evidence. Consequently were the Court's legal formula posed for application in a coerced testimony case, I could agree to it. But it is not. Instea the Court looks to the 'totality of circumstances' to show 'unfair lineup procedures.' This means 'unfair' according to the Court's view of what is unfair. ”

“ This formula imposes no 'restraint' on judges beyond requiring them to follow their own best judgment as to what is wise, just, and best under the circumstances of a particular case. This case well illustrates the extremes to which the formula can take men who are both wise and good. Although due process requires that courts summon witnesses so that juries can determine the guilt or innocence of defendants, the Court, because of its sense of fairness, decides that due process deprives juries of a chance to hear witnesses who the Court holds could not or might not tell the truth. ”

“ All laws are unconstitutional that are unfair, shock the conscience of the Court, offend its sense of decency, or violate concepts implicit in ordered liberty.
The first of these two constitutional standards plainly tells judges they have no power to hold laws unconstitutional unless such laws are believed to violate the written Constitution. ”

“ Hearsay evidence, for example, is in most instances rendered inadmissible by the Confrontation Clause, which reflects a judgment, made by the Framers of the Bill of Rights, that such evidence may be unreliable and cannot be put in proper perspective by cross-examination of the person repeating it in court. ”

“ For the Court has in effect decided here that the officers of the law have so 'arranged' lineups that the eyewitness to the robbery has been led to make an 'irreparable mistaken identification.' In other words, no one now or hereafter can believe his identification of Foster as the robber. Since he and the accomplice are the only eyewitnesses, and since, in order to convict, California law requires evidence of an accomplice to be corroborated, the Court's direction means, I suppose, that the trial judge here should dismiss the case. ”

“ To say the least, the question whether an error in a particular case is harmless is an issue peculiarly for lower, not for the highest, appellate courts. Then, too, this issue can usually be tried more efficiently, and just as fairly, by the local court that tried the case or by the local appellate court that heard the first appeal. ”

“ I realize that some argue that there is little difference between the two constitutional views expressed below:
One. No law should be held unconstitut onal unless its invalidation can be firmly planted on a specific constitutional provision plus the Necessary and Proper Clause. ”

“ All of these different general and indefinable words or phrases are the fruit of the same, what I consider to be poisonous, tree, namely, the doctrine that this Court has power to make its own ideas of fairness, decency, and so forth, enforceable as though they were constitutional precepts. ”