Apr 26, 2023
Pic: Library of Congress
Alger Hiss is going on trial for perjury. This Podcast
is a survey, at 23,000 feet, of the possible arguments for The
Prosecution and for The Hiss Defense. Of each side’s possible
arguments, which are strong and which are weak? This may be
of special interest to real trial lawyers, or to the inner Perry
Mason who lurks within each of us.
If you were The Prosecution, what would you emphasize to the
jury? What are Chambers’ strengths as a witness? What are his
weaknesses? You also have all the documents Chambers produced, of
course. Do you have anything else — any other witnesses you
would call? When you cross-examine Hiss, is there anything
you would like him to admit to?
Suppose you were The Hiss Defense and you decided to mount a
fighting defense (not resting on the presumption of innocence that
is the right of every criminal defendant). Would you
concentrate on attacking Chambers (who is a target-rich
environment)? Or would you emphasize building up Hiss’
sterling past acts and glowing character references? Can you
give Chambers a plausible motive for lying about Hiss? Can
you explain Chambers’ possession of documents by Hiss and his wife,
obviously prepared for espionage in 1938, that Chambers produced in
1948? The Grand Jury didn’t buy Hiss’s Exculpatory Theory
#1. What is your Exculpatory Theory #2?
This Podcast is about the arguments for The Prosecution, and
the arguments for The Hiss Defense, in the upcoming trial of Alger
Hiss for perjury.
Suppose you were The Prosecution. Two crucial points to
bear in mind: first, you must prove BEYOND A REASONABLE DOUBT that
Hiss lied when he denied passing government documents to Chambers
in 1937 and 1938. The jury must be left with no doubt, based
in reason, that Hiss did that. Also, something called The
Federal Perjury Rule says that the testimony of one witness —
Chambers, obviously — is not enough. The Prosecution must
have two witnesses, or one witness plus independent
corroboration. Assuming Chambers is your only witness, what
is your independent corroboration? How do you make Chambers
credible, overcoming his strangeness, his being a confessed
traitor, his possibly disreputable ratting out of his best friend,
and his past denials under oath that any spying took place?
Is there some way you can make Hiss look worse than Chambers?
How would you prove that the handwritten documents were in Hiss’s
handwriting and that the typed documents were typed on the Hiss
There is almost no record of what The Prosecution was thinking
about these matters. Much about the FBI’s factual investigations,
of which there are extensive (and sometimes hilarious) records, is
described in a much later Podcast, #37, about what did not come out
at the trials.
Suppose you were The Hiss Defense? You need do absolutely
nothing — The Prosecution has the burden of proof and Hiss is
innocent until proven guilty. But suppose you want to mount a
fighting defense. How can you weaken The Prosecution’s Case?
Other than Chambers’ weaknesses that were just described, would you
dredge up his past strange behavior and try to make him seem
insane, or mentally ill, or at least not believable BEYOND A
REASONABLE DOUBT? Would you introduce evidence that Chambers
was a homosexual? (Remember this is 1948, not today.). How do
you explain Chambers’ possession in 1948 of documents, obviously
prepared for spying, in Hiss’s handwriting and typed on the Hiss
home typewriter? Hiss’s Exculpatory Theory #1 didn’t work
before The Grand Jury. What’s your Theory #2? Might
Chambers be concealing a real Soviet spy in the State Department,
someone who had access to the papers in Alger’s office? Would you,
like The Prosecution, search for the Hiss home typewriter?
The limited history of the internal strategic deliberations of
The Hiss Defense is in Marbury’s above-cited 1981 law review
article beginning at page 85, in Smith’s book at 272-90, and in
Weinstein’s book at 399-424. It’s fascinating reading for any
lawyer who has ever planned or carried out strategy in a
complicated high-profile case in which both sides have great
strengths and great weaknesses. One fact that makes the
thinking of Hiss’s counsel relatively available is that they were
in different cities. In the 1940s, long distance telephone
calls were expensive and conference calls were a minor nightmare to
arrange. So, many opinions that would normally be spoken over
coffee were, in Hiss’s case, committed to paper.