The opinion of the court was delivered by: COOLAHAN
This case comes before the Court on remand from the Third Circuit Court of Appeals for a determination of (1) the applicability of United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), to a case pending on direct appeal at the time Hale was decided, and (2) whether Hale requires a new trial under the circumstances of this case. After the remand, the United States Supreme Court decided Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), which determined the constitutional issue left open in Hale. Because of the relevance of Doyle to the questions presented upon remand, the Court has considered the impact of that decision as well. These cases prohibit the use of a defendant's silence, after he has received his warnings under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), at the time of his arrest, to impeach his exculpatory trial testimony.
On March 14, 1975, after a two-day jury trial, Joseph C. Lenardo was found guilty of conspiracy to embezzle, steal and possess firearms stolen from interstate commerce, embezzlement and theft of an interstate shipment of firearms, and knowing possession of embezzled and stolen firearms, in violation of 18 U.S.C. §§ 371, 659. On April 29, 1975, this Court sentenced the defendant to three concurrent three-year terms. Lenardo filed his notice of appeal on May 5, 1975. On June 23, 1975, while the appeal was pending, the United States Supreme Court decided United States v. Hale, supra. The Third Circuit ordered the case remanded, for consideration in light of Hale, on February 2, 1976. The United States Supreme Court rendered its decision in Doyle v. Ohio, supra, on June 17, 1976. This Court must now consider the retroactivity problem.
In Desist v. United States, 394 U.S. 244, 249, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969), the Court noted that retroactivity is a function of three factors, first formulated in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), and fully articulated in Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967):
". . . (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."
The Court in Desist observed that "[foremost] among these factors is the purpose to be served by the new" standards. 394 U.S. at 249, 89 S. Ct. at 1033. If the purpose of the new standards is to ensure "fairness of the trial" or "the very integrity of the fact-finding process," Linkletter v. Walker, supra, 381 U.S. at 639, 85 S. Ct. at 1743, the Court will apply the standards retroactively, unless the other factors strongly suggest a contrary result.
However, our courts apply new standards not only completely retrospectively or completely prospectively, but, at times, somewhere in between.
Strictly speaking, when the Supreme Court announces a new rule, interpretation, or standard, if it applies that rule, interpretation, or standard to the litigants then before it, the Court is applying the rule retroactively.
In Linkletter v. Walker, supra, 381 U.S. at 621-22, 85 S. Ct. at 1733, the Court noted that a "ruling which is purely prospective does not apply even to the parties before the court. See, e.g., England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 [84 S. Ct. 461, 11 L. Ed. 2d 440] (1964)." Rarely does the Court apply a rule purely prospectively so as to deny the litigants, who successfully challenged the old standard, the benefit of their endeavors. In fact, purely prospective application of new standards is in disfavor. I can find no criminal procedure cases since Linkletter where a rule was purely prospectively applied.
A court may also apply a new rule to cases pending on direct appeal at the time the new standard is enunciated. This is what is called partial retroactivity. The reasoning here is that those who raise the issue contemporaneously with the litigant who successfully challenged the old standard should not be denied the application of the new standard just because they were not fortunate enough to have their appeal litigated first.
Lastly, there is complete retroactive application, which means that the court applies the new standard to all cases whenever decided.
Defendant argues that Hale should be applied to all cases on direct appeal when Hale was decided. He asserts that the general rule is that all new standards are applied partially retroactively, that is, new standards are applied to all cases on direct appeal at the time the new standards are announced.
However, there is a line of cases starting with Johnson v. New Jersey, 384 U.S. 719, 732, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), which suggest that the Linkletter test makes no distinction between partial and full retroactive application. See, Desist v. United States, supra, 394 U.S. 244, 89 S. Ct. 1048, 22 L. Ed. 2d 248. This test would require ad hoc determinations of retroactivity for cases on direct appeal when the new standard is announced as well as for cases already final. The distinction between partial and full retroactive application would then become a matter of degree.
Defendant's argument is based on several civil cases, all of which rely on Chief Justice Marshall's opinion in United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L. Ed. 49 (1801), wherein he stated:
"It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied . . . [and] where individual rights . . . are sacrificed for national purposes . . . the court must decide according to existing laws, and if it be necessary to set aside a judgment . . . which cannot be affirmed but in violation of law, the judgment must be set aside."
This principle was interpreted to mean that a court must apply whatever new standard is formulated to cases pending on appeal because the new standard is the law.
The principle was commented upon in Linkletter v. Walker, supra, wherein the Court traced the common law treatment of the concept of retroactivity. According to the Linkletter opinion, in the common law all new rules were given retroactive application at first. Later, courts began to realize that those who relied on the old standard or rule were thereby prejudiced. Thus, prospective applications began to occur. See discussion in Linkletter v. Walker, supra, 381 U.S. at 622-629, 85 S. Ct. 1731.
Cases on direct appeal at the time a new standard was formulated enjoyed the application of the new standard despite prospective application to cases final at the time the new standard was formulated. Both civil and criminal cases followed that rule. E.g., United States v. Chambers, 291 U.S. 217, 54 S. Ct. 434, 78 L. Ed. 763 (1964). In fact, the Court in Linkletter observed "[that] no distinction was drawn between civil and criminal litigation . . .." 381 U.S. at 627, 85 S. Ct. at 1736. See also, James v. United States, 366 U.S. 213, 81 S. Ct. 1052, 6 L. Ed. 2d 246 (1961). In Linkletter, 381 U.S. at 627, 85 S. Ct. at 1736, the Court concluded that "[under] our cases it appears (1) that a change in law will be given effect while a case is on direct review."
The Linkletter Court declined to give complete retroactive effect to Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (due process requires that evidence obtained in violation of defendant's Fourth Amendment rights is inadmissible at trial), but it noted that previous cases had applied the Mapp exclusionary rule to cases on direct appeal at the time Mapp was decided.
Linkletter v. Walker, supra, 381 U.S. at 622 n. 4, 85 S. Ct. 1731. E.g., Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963); Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964).
However, the Linkletter Court, after concluding its review of the common law, decided that the present rule would be different. The Court said, "[thus,] the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective." (Emphasis added.) 381 U.S. at 628, 85 S. Ct. at 1737. It added that even new rules which were constitutionally compelled did not require a different result. "However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, 'We think the Federal Constitution has no voice upon the subject.'" 381 U.S. at 629, 85 S. Ct. at 1736.
It is not clear from that language whether the Court was implying that the present rule with regard to prospective applications of new standards applied to cases on direct review as well.
In O'Connor v. Ohio, 382 U.S. 286, 86 S. Ct. 445, 15 L. Ed. 2d 337 (1965), a short per curiam opinion, the Court applied without explanation the new standard of Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (prosecutor may not comment on defendant's failure to testify), to cases pending on direct appeal when Griffin was decided, while Tehan v. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966), denied complete retroactive application to the Griffin no-comment rule.
However, beginning with Johnson v. New Jersey, supra, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 the Court "abandoned the approach [of giving effect to new standards to cases pending on appeal at the time] taken in Linkletter and Tehan and concluded that 'there are no jurisprudential or constitutional obstacles' to the adoption of a different cut-off point." Desist v. United States, supra, 394 U.S. at 252, 89 S. Ct. at 1035 (citing Johnson v. New Jersey, supra, 384 U.S. at 733, 86 S. Ct. 1772).
In Johnson the Court, after deciding that the rules in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), and Miranda v. Arizona, supra, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (defendant in custody must be given specific warnings advising him of his Fifth Amendment privilege against self-incrimination), would not be applied retroactively, stated (384 U.S. at 732, 86 S. Ct. at 1780):
"The question remains whether Escobedo and Miranda shall affect cases still on direct appeal when they were decided or whether their application shall commence with trials begun after the decisions were announced. Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced. See 381 U.S. at 622 and n. 4 [85 S. Ct. at 1731]; 382 U.S. at 409, n. 3 [86 S. Ct.  at 461]. On the other hand, apart from the application of the holdings in Escobedo and Miranda to the parties before the Court in those cases, the possibility of applying the decisions only prospectively is yet an open issue." (Emphasis added.)
The Court concluded that for the same reasons it declined to apply the Miranda and Escobedo rules to final cases, it would decline to apply them to cases on direct appeal when those decisions were rendered.
The Court added that the "introductory discussion in Linkletter, and the cases cited therein, have made it clear that there are no jurisprudential or constitutional obstacles to the rule we are adopting here. See 381 U.S. at 622-29 [85 S. Ct. , at 1733-1737]." Id. at 733, 86 S. Ct. at 1781. In both England v. Louisiana State Board of Medical Examiners, supra, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 and James v. United States, supra, 366 U.S. 213, 81 S. Ct. 1052, 6 L. Ed. 2d 246, the Court had declined to apply a new standard to cases pending on direct appeal at the time. In Stovall v. Denno, supra, 388 U.S. at 301, 87 S. Ct. 1967 (where the Court concluded that the right to counsel at a lineup, United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), should not be applied retroactively), the Court found no reason to distinguish the cases on direct appeal. For the same reasons it declined to apply the new standard to cases already final, it declined to apply those new standards to cases then pending on appeal.
The rule in criminal procedure cases with respect to cases pending on direct appeal at the time a new standard is formulated is the same as that employed for cases already final. See, United States v. Peltier, 422 U.S. 531, 95 S. Ct. 2313, 45 L. Ed. 2d 374 (1975). The civil cases cited by defendant do not indicate a different rule.
In Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 282-83, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969), the Court relying on Schooner Peggy, supra, 5 U.S. 103, applied an administrative agency's change in the law to cases pending appeal when the change was made because it furthered the act's remedial purpose. The Court did note that the general principle of application of new standards to cases pending on appeal at the time of the change would be followed where there was no manifest injustice in doing so. Accord, Bradley v. Richmond School Board, 416 U.S. 696, 717, 94 S. Ct. 2006, 2019, 40 L. Ed. 2d 476 (1974), where the Court stated that the test for manifest injustice would require an analysis of "(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights." In Hamling v. United States, 418 U.S. 87, 103, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974), the Court applied the new obscenity standards of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1974), to a case on direct appeal when Miller was decided, but found that it did not materially change the result and therefore affirmed the conviction of mailing and conspiring to mail obscene materials.
These cases, I find, do not change the holding in the Johnson line of cases. Prospective application is the exception to the rule, but it is an ever-growing exception. In fact, at this point the exception may be more the rule than the rule. The two lines of cases can be harmonized by a finding that in criminal cases, where the application of new standards can often open floodgates to the detriment of society, for policy reasons courts should apply the Stovall v. Denno three-pronged test. Where the purpose of the rule, the reliance upon the old rule, and the burden on the administration of criminal justice all indicate that retroactive application, even partial retroactive application, may work a "manifest injustice," such retroactive application must be denied.
In civil cases the test for manifest injustice is similar to that employed in criminal cases. However, the Court has made it clear that the Linkletter-Stovall test should be applied even for cases on direct appeal at the time the new standard is articulated. Even the Thorpe line of cases does not indicate a per se rule, but rather employs a test not inconsistent with that used in Linkletter and Stovall.
Defendant's contention that the Thorpe line of cases requires automatic application of a new rule to cases then pending on appeal is not the law. This Court is convinced that it must and should apply the Linkletter and Stovall test. As the Court in Stovall v. Denno, supra, 388 U.S. at 301, 87 S. Ct. at 1972, noted:
"Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making." (Emphasis added.)
Our first inquiry must be directed to the purpose of the new rule. In Linkletter the new rule was prophylactic. The exclusionary rule was intended to deter police from violating defendants' Fourth Amendment rights and to protect judicial integrity. The rule had no bearing on the truth-finding process. The Court stated that "[in] so holding, we relied in part on the fact that the rule affected evidence 'the reliability and relevancy of which is not questioned.' [ Linkletter v. Walker, supra] 381 U.S., at 639 [85 S. Ct. , at 1743]." Johnson v. New Jersey, supra, 384 U.S. at 727, 86 S. Ct. at 1777.
Similarly, the Court has denied retroactive application to other Fourth Amendment exclusionary rule cases. E.g., Williams v. United States, 401 U.S. 646, 91 S. Ct. 1148, 28 L. Ed. 2d 388 (1971) (denying retroactivity to Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), which stated that a search incident to arrest may only extend to the area within defendant's reach); Desist v. United States, supra, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (denying retroactivity to Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), which stated that a search need not be trespassory; United States v. Peltier, supra, 422 U.S. 531, 95 S. Ct. 2313, 45 L. Ed. 2d ...