Tomorrow, the Supreme Court examines a constitutional right put in the Bill of Rights out of Americans’ revulsion at the infamous treason trial of Sir Walter Raleigh in England.  The Court also will hold a second hearing Wednesday, on the power of the federal tax collector to probe private records when seeking to collect a delinquent tax.

The Court will broadcast “live” the audio (no video) of the hearings on its homepage, supremecourt.gov  To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt

First case Wednesday:  Samia v. U.S.    The hearing, scheduled for one hour, will begin at 10 a.m.

Background:  American history and culture owe a great deal to Sir Walter Raleigh – the Elizabethan poet, soldier and explorer.  He was a key figure in Elizabeth I’s attempt in 1587 to establish the first English colony in America at Roanoke Island, off the coast of what became North Carolina.  But one of Sir Walter’s unintended gifts to America was a right that would gain protection in the Constitution’s Sixth Amendment.

When the first Congress was drafting the Bill of Rights in 1789, among the rights the lawmakers were determined to include was based on their reaction to how the English courts had treated Sir Walter at his trial for treason in 1603. He was accused by the Crown prosecutor, based upon a false confession by a man he thought of as a friend, Henry Brooke, the Baron Cobham.

When Queen Elizabeth died in March 1603, James I ascended to the throne.  In July of that year, according to Cobham, Sir Walter and other members of the Crown court plotted to remove James and put his cousin, Lady Arabella Stuart, on the throne.

At his trial on the treason charge, Sir Walter demanded that Cobham be summoned to appear as a witness, so that his confession could be challenged in a face-to-face encounter.  The court refused, Sir Walter was convicted and sentenced to death.  His execution did not actually occur until 1618, when he was beheaded on orders of James I, who yielded to the demands of the Spanish government, against whom Sir Walter had long been a foe.

In the meeting of America’s first Congress in 1789, there was little debate about the provision to be included in the Sixth Amendment as the “Confrontation Clause.”  It still reads this way: “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…”

Originally written to apply only to trials in federal courts, the Clause was made binding in state trials, too, by the Supreme Court’s 1965 decision in Pointer v. Texas.  In that ruling, the Court also extended to state trials a right to cross-examine witnesses, which is not explicitly included in that Amendment but is treated as a necessary part of the right to confront.

This case is an illustration of a recurring issue: if a witness gives a statement that accuses the person on trial of the crime at issue, but the witness will not be available to take the stand, must the statement be barred from trial as evidence against the accused?

Facts of this case:  A North Carolina man, Adam Samia, was charged by a grand jury in New York with being a “hit man” hired by the head of a criminal operation in the Philippines, Paul LeRoux, to kill a woman real estate broker there, who was said to have stolen money from LeRoux.

Another man, Carl David Stillwell, was also accused in the case, as the driver on the day in February 2012 when the woman was killed in a drive-by shooting.  A third man involved in the incident, Joseph Hunter, who recruited the “kill team,” was also accused.  The three were tried together, and convicted on all counts.  (LeRoux was captured and began cooperating with prosecutors, and pleaded guilty to charges for his own actions.)

Stillwell, after his arrest, gave prosecutors a statement admitting the plot to kill the woman, and specifically naming Samia as the shooter.  Prosecutors wanted to use that as evidence against Samia, but could not use it in its original form because that would violate a 1968 Supreme Court ruling.  In Bruton v. U.S., the Court decided that such an out-of-court confession by one man cannot be used at a joint trial even if the jurors were told to consider it only against the one who confessed, because that instruction was not enough to avoid having the jury interpret it as applying to a person who had no chance to cross-examine the accuser.

In this case, prosecutors did not attempt to offer the confession by Stillwell against Samia, but did call a government agent as a witness, and he was questioned about the content of the confession.  Repeated references were made to the “other man” in on the killing.  The jurors were told they could consider the confession only as to Stillwell, not Samia.

Samia, sentenced to a life sentence, filed an appeal challenging the questioning about the confession as a violation of the Confrontation Clause.  The appeals court upheld the process, finding that the statement’s impact on the jury had to be judged on the confession alone, as discussed in the agent’s testimony, and not in connection with any other evidence.  It was not necessary, according to that ruling, that the confession be weighed in the broader context of the whole trial.

Samia appealed to the Supreme Court, contending that the federal appeals courts disagree on whether the approach used in his case is unconstitutional.  The Justice Department urged the Justices not to grant review, noting that the Court had passed up similar appeals raising the issue.  The Court agreed to hear this case anyway.

The question before the Court:  How should a criminal trial court assess, under the Sixth Amendment, the impact on the jury of a confession given by one of those on trial pointing to the other?  Must the confession’s impact be assessed in the context of all of the evidence?

Significance:  The one piece of evidence most favorable to prosecutors and most persuasive to jurors is a confession.  It places the confessor at the scene of the crime, and describes that person’s role and that of any others involved.  If it is used at a trial along with other evidence, as would normally happen, it can enhance the strength of all of the evidence.

Technically speaking, a confession has a ring of truth because it is what lawyers and judges call a “statement against interest” – that is, it is so harmful to the person who made it that it very likely will be reliable, especially if prosecutors prove it was voluntary.

When prosecutors put on trial two or more individuals charged with the same crime, a confession by one of them implicating the other can bolster the evidence against both.  Since the one who confessed cannot be compelled to take the witness stand (the Fifth Amendment right against self-incrimination prevents that), the other one who is implicated has no way to confront that witness.  If the jurors are told, in any way, about the confession, it can become the centerpiece of the trial.

The Supreme Court, well aware of the strength of confessions, has spent years trying to ensure that such admissions of guilt are not coerced by police and that they are handled at trial in a way that does not impair the right to confront one’s accusers.  This case carries that exploration further.

Second case Wednesday:  Karcho Polselli and others v. Internal Revenue Service  This hearing, scheduled for one hour, will begin when the case on criminal confessions is finished.

Background:  The Internal Revenue Service has broad powers to demand access to taxpayer records, when it suspects that taxes have been evaded or under-paid.  The Supreme Court, in rulings in 1971 and 1975, interpreted that power broadly when the IRS seeks someone else’s files in search of information about a taxpayer’s liability.

Those rulings upset Congress, which feared broad invasions of privacy by the IRS.  In 1976, it passed the law at issue in this case.  The law provides that IRS, when demanding records about a taxpayer from someone else’s files (say, bank account records or client files of lawyers or accountants), the taxpayer involved must be given notice of that demand and given a chance to challenge it in court.

However, there are some exceptions, and one is at issue in this case.  IRS does not have to give the taxpayer notice before records it has demanded are opened, if IRS has already concluded that a given taxpayer owes back taxes, has assessed the amount due, and is focusing on how to collect what’s due.  Congress made that exception in order to avoid interfering with actual collections of delinquent taxes, apparently believing that a taxpayer who was clearly delinquent would, if given notice, move assets around to put them out of IRS’s reach.

Facts of this case:  A Michigan man, Remo Polselli, was assessed more than $2 million for taxes that IRS said he had not paid over a period of years.  IRS then went looking for his assets, to collect on the tax debt.

IRS sent sweeping demands to two banks that held accounts for the taxpayer’s wife, Hanna Karcho Polselli, and a law firm with which the taxpayer had dealings, Abraham & Ross, seeking to trace any money flows that might have involved Mr. Polselli.  IRS did not notify the wife or the law firm, relying on the exception in the notice requirement law.  The banks did tell the wife and the law firm.

Believing they were entitled to notice, and thus they had a right to sue to block the IRS demands, Mrs. Polselli and the law firm filed a challenge.  The lower courts ruled that IRS could not be sued because it was seeking to collect taxes that clearly were due, so the exception applied and the court had no power to hear the case.

The wife and the law firm and one of its partners appealed to the Supreme Court, arguing that federal appeals courts have reached conflicting decisions on IRS’ duty in this situation.   The Justice Department opposed the appeal, but the Justices granted review anyway.

The question before the Court:  Does federal law bar the IRS, in trying to collect back taxes, from formally demanding access to records held by others that might aid its collection – unless its demand only targets the records known to belong to the delinquent taxpayer?

Significance:  As a general rule, the federal government as a sovereign entity is immune to being sued, unless it grants permission.  Congress is reluctant to allow IRS to be sued to stop it from collecting taxes, because that threatens its enforcement of tax laws and the flow of tax revenues into the Treasury.  However, it has done so in the 1976 law the Justices are exploring here.

Competing with IRS’s need to go after delinquent taxpayers is the right of privacy that people have in their personal records and files.  This case will require the Justices to assess how Congress intended to balance those two considerations in passing the 1976 law.

After Wednesday, the Court will resume hearings on April 17 – the final round of hearings scheduled for the Court’s current term.