HARLAN, J., concurring 398 U.S. Rule 22 (2), as promulgated, contains no express provision allowing for waiver. It is clear from prior decisions that the Court has interpreted the rule to allow for such a waiver, however. So interpreted, I find Rule 22 (2) no less authorized under 18 U. S. C. § 3772 than would be a rule that by its terms provided expressly for the possibility of a waiver. Nor do I find it at all anomalous that this Court on occasion waives the time limitations imposed by its own Rules and yet treats time requirements imposed by statute as jurisdictional. As a matter of statutory interpretation, the Court has not presumed the right to extend time limits specified in statutes where there is no indication of a congressional purpose to authorize the Court to do so. Because we cannot "waive" congressional enactments, the statutory time limits are treated as jurisdictional. On the other hand, for the time requirement of Rule 22 (2), established under a broad statutory delegation, it is appropriate to apply the "general principle" that "[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it,'" American Farm Lines v. Black Ball, 397 U. S. 532, 539 (1970), quoting from NLRB v. Monsanto Chemical Co., 205 F. 2d 763, 764 (C. A. 8th Cir. 1953). III Although I therefore conclude that this Court possesses the discretion to waive the time requirements of Rule decision," given the rather clear indications from the language and background of the existing rule that the omission had been deliberate. Although the Government relies heavily on Robinson here, neither the language nor the background of Rule 22 (2) indicates a "deliberate intention" to preclude waiver. 8 See, e. g., Heflin v. United States, supra; Taglianetti v. United States, supra. 58 WHITE, J., concurring in result 22 (2), it must be recognized that such requirements are essential to an orderly appellate process. Consequently, I believe our discretion must be exercised sparingly, and only when an adequate reason exists to excuse noncompliance with our Rules. In the present case, I agree with the Court that petitioner has adequately explained why he failed to meet our time requirements. On this basis I concur in Part II of the Court's opinion. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, concurring in the result. I agree that Congress cannot constitutionally distinguish between those theatrical performances that do and those that do not "tend to discredit" the military, in authorizing persons not on active duty to wear a uniform. I do not agree, however, with the Court's conclusion that as a matter of law petitioner must be found to have been engaged in a "theatrical production" within the meaning of 10 U. S. C. § 772 (f). That issue, it seems to me, is properly left to the determination of the jury. The United States has argued that the exception for "theatrical productions" must be limited to performances in a setting equivalent to a playhouse or theater where observers will necessarily be aware that they are watching a make-believe performance. Under this interpretation, the Government suggests, petitioner must be found as a matter of law not to have been engaged in a "theatrical production"; hence, his conviction for unauthorized wearing of the uniform is lawful without regard to the validity of the "tend to discredit" proviso to § 772 (f). The Court, on the other hand, while refusing to assay a definition of the statutory language, flatly declares that under any interpretation, Congress could not possibly have meant to exclude petitioner's "street skit" from the class of "theatrical productions." Neither extreme, in my view, is correct. The critical question WHITE, J., concurring in result 398 U.S. in deciding what is to count as a "theatrical production" ought to be whether or not, considering all the circumstances of the performance, an ordinary observer would have thought he was seeing a fictitious portrayal rather than a piece of reality. And, although the judge's instructions here did not precisely reflect this interpretation, this question seems eminently suited to resolution by the jury. Under proper instructions, then, a jury could have concluded that no theatrical production was involved, in which case the verdict should be sustained. However, the judge's instructions also permitted conviction on a finding that petitioner was engaged in a theatrical production, but that the production tended to discredit the military. See App. 51-54. Since the general verdict does not disclose which of these findings only one of which can constitutionally entail conviction— was the actual finding, the conviction must of course be reversed. Stromberg v. California, 283 U. S. 359 (1931). I thus join the judgment of reversal but find it neither necessary nor correct to hold that petitioner's "theatrics" perforce amounted to a "theatrical production." Per Curiam MONKS v. NEW JERSEY CERTIORARI TO THE SUPERIOR COURT OF NEW JERSEY No. 127. Argued February 26, 1970-Decided May 25, 1970 Certiorari dismissed as improvidently granted. Anthony G. Amsterdam, by appointment of the Court, 395 U. S. 942, argued the cause for petitioner. With him on the brief was Michael Meltsner. Archibald Kreiger argued the cause for respondent. With him on the brief was John G. Thevos. PER CURIAM. Having scrutinized the record and considered the briefs and oral arguments submitted on both sides, we are satisfied that petitioner's claim of coercion respecting his confession, given by him over 12 years ago upon his apprehension as an alleged juvenile delinquent, does not merit the plenary review that we thought it might deserve at the time petitioner's pro se petition for certiorari was granted. 395 U. S. 903. The other claims tendered in such petition fare no better. The further claim advanced by petitioner's appointed counsel in this Court respecting the alleged unconstitutional application of N. J. Stat. Ann. § 2A:4-37 (b) has been raised for the first time upon this writ and the state courts have had no opportunity to pass upon it. Accordingly we conclude that the writ of certiorari should be dismissed as improvidently granted, without prejudice to any further appropriate proceedings below. It is so ordered. MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS joins, dissenting. Petitioner, a 15-year-old boy, was arrested at 1 o'clock in the morning of February 16, 1957, removed to the MARSHALL, J., dissenting 398 U.S. police station, and questioned by detectives for several hours about two purse-snatching incidents. He was then held in confinement in the Children's Shelter for 10 days during which time he was questioned at least three times by two detectives in the presence of a juvenile probation officer. Further questioning began on other crimes including two murders in the same area as the purse snatchings. During the entire 10-day period this 15-year-old boy was without advice of his parents, lawyer, or friends. Indeed, his mother first learned he was in custody after he confessed to the two murders. During the entire 10-day period petitioner was never told he had a right to remain silent, or to refuse to answer the questions by the two detectives. The end came on February 26, 1957. Petitioner arose at 7 o'clock in the morning, questioning began at 10 o'clock and continued off and on for 15 hours before the confession was typed. During this period he was moved from the Children's Shelter to the courthouse, the grand jury room, and an adjacent room. He was given several lie-detector tests and confronted with alleged witnesses. He had no sleep. He was given sandwiches for his lunch and dinner. Certainly, such treatment so clearly violates the holdings of Haley v. Ohio, 332 U. S. 596 (1948); Culombe v. Connecticut, 367 U. S. 568 (1961); Haynes v. Washington, 373 U. S. 503 (1963); and Greenwald v. Wisconsin, 390 U. S. 519 (1968), as to require a reversal in this case. |