Subpoenaed before a state grand jury which was conducting an
inquiry regarding violations of state laws, petitioner refused to
answer certain questions on the ground of possible
self-incrimination. After being granted under a state statute
immunity from state prosecution and being ordered by a state court
to answer, petitioner persisted in his refusal on the ground that
to answer the questions might expose him to federal prosecution for
violation of a federal statute. For such refusal, he was convicted
in the state court of contempt, and sentenced to fine and
imprisonment.
Held: his conviction did not violate his rights under
the Fifth Amendment, which limits only the powers of the Federal
Government, and not those of the States. Pp.
357 U. S.
372-381.
(a) To sustain petitioner's contention that, because Congress
has made certain conduct a federal crime, the Fifth Amendment
enables him to assert against a State Government the privilege
against giving testimony that might tend to implicate him in a
violation of the federal statute would disregard the historic
distribution of power in our federal system between the Federal
Government and the States. Pp.
357 U. S.
374-377.
(b) Though the Fourteenth Amendment did impose some restrictions
upon the States in the making and enforcement of criminal laws, it
did not fundamentally change the great division of powers between
the Federal Government and the States in the enforcement of the
criminal law. P.
357 U. S.
378.
(c) The right of the States, as a means of investigating and
discovering corruption and misconduct which violate state laws, to
require full disclosure in exchange for immunity of a witness from
state prosecution cannot be denied on the ground that it may expose
the witness to prosecution under federal law. Pp.
357 U. S.
378-379.
(d) The sole purpose of the Fifth Amendment privilege against
self-incrimination is the security of the individual against
exertion of the power of the Federal Government to compel
incriminating testimony with a view to enabling the Federal
Government to convict him out of his own mouth. Pp.
357 U. S.
379-380.
2 N.Y.2d 913, 975,141 N.E.2d 825,142 N.E.2d 649, affirmed.
Page 357 U. S. 372
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Petitioner is a partner in a New York manufacturing firm engaged
in interstate commerce, some of whose employees have been organized
by a local union of the International Brotherhood of Teamsters.
Petitioner was subpoenaed to appear before a New York grand jury
conducting an inquiry regarding bribery of labor representatives,
conspiracy and extortion, constituting crimes under state law.
Petitioner, duly sworn, was asked a question concerning the union's
representation in certain wage negotiations with petitioner's firm;
he refused to answer on the ground that his answer might tend to
incriminate him. The grand jury then granted petitioner immunity
from prosecution, applying N.Y. Penal Law, McKinney's Consol.Laws,
c. 40, §§ 381, 2447, which provides that one duly granted
immunity
"shall not be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter or thing
concerning which, in accordance with the order by competent
authority, he gave answer or produced evidence, and that no such
answer given or evidence produced shall be received against him
upon any criminal proceeding."
§ 2447(2). Having been thus granted immunity, petitioner was
directed to answer the question. He again refused to do so on the
ground of possible self-incrimination.
In a subsequent appearance before the grand jury, petitioner was
asked, and was directed to answer by the foreman, fourteen other
questions concerning relations
Page 357 U. S. 373
and transactions between petitioner and union officials.
Petitioner again invoked the privilege against self-incrimination.
On application of the foreman of the grand jury, respondent
Schweitzer, as judge of a New York Court of General Sessions,
ordered petitioner to return to the grand jury and make answer to
the questions put to him.
After further refused to answer, petitioner was once more
ordered to appear before respondent Schweitzer; when he did so, the
respondent district attorney moved that petitioner be punished for
contempt of court. In opposition to this application, petitioner
stood on his refusal to answer inasmuch as the immunity granted by
the grand jury did not protect him against federal prosecution.
Respondent Schweitzer adjudged petitioner in contempt of court and
sentenced him to serve thirty days in jail and to pay a fine of
$250.
People v. Knapp, 4 Misc.2d 449, 157 N.Y.S.2d
820.
Petitioner applied to the Supreme Court of New York for reversal
of the contempt conviction and for an order prohibiting respondents
from proceeding further in the matter. He alleged that his danger
of self-incrimination was attributable to the prosecutorial
potentialities of § 302 of the Labor Management Relations Act of
1947, 61 Stat. 136, 157, 29 U.S.C. § 186, making it unlawful
"for any employer to pay or deliver, or to agree to pay or
deliver, any money or other thing of value to any representative of
any of his employees who are employed in an industry affecting
commerce"
(§ 302(a)), and to the fact that the United States Attorney for
the Southern District of New York had
"made public announcement of his intention to cooperate with the
[respondent] District Attorney . . . in the prosecution of criminal
cases in the field of the subject matter out of which petitioner's
commitment arose."
The petition for
Page 357 U. S. 374
reversal of the contempt conviction was denied by the Supreme
Court; this judgment was unanimously affirmed in the Appellate
Division, 2 A.D.2d 579, 157 N.Y.S.2d 158, and, without opinion, by
the Court of Appeals of New York, 2 N.Y.2d 913, 161 N.Y.S.2d 437,
141 N.E.2d 825, which duly amended its remittitur to show that it
had passed on and rejected petitioner's claim of a privilege
against self-incrimination under the Fifth Amendment, 2 N.Y.2d 975,
162 N.Y.S.2d 613, 142 N.E.2d 649. We granted certiorari, 355 U.S.
804, to consider this constitutional question.
Petitioner does not claim that his conviction of contempt for
refusal to answer questions put to him in a state proceeding
deprived him of liberty or property without due process of law in
violation of the Fourteenth Amendment; that such a claim is without
merit was settled in
Twining v. New Jersey, 211 U. S.
78. His contention is, rather, that, because the
Congress of the United States has in the exercise of its
constitutional powers made certain conduct unlawful, the Fifth
Amendment gives him the privilege, which he can assert against
either a State or the National Government, against giving testimony
that might tend to implicate him in a violation of the federal act.
[
Footnote 1] Because of the
momentum of adjudication whereby doctrine expands from case to
case, such a claim carries dangerous implications. It may well lead
to the contention that, when Congress enacts a statute carrying
criminal sanctions, it has, as a practical matter, withdrawn from
the States their traditional power to investigate in aid of
prosecuting conventional state
Page 357 U. S. 375
crimes, some facts of which may be entangled in a federal
offense. To recognize such a claim would disregard the historic
distribution of power as between Nation and States in our federal
system.
The essence of a constitutionally formulated federalism is the
division of political and legal powers between two systems of
government constituting a single Nation. The crucial difference
between federalisms is in a wide sweep of powers conferred upon the
central government with a reservation of specific powers to the
constituent units as against a particularization of powers granted
to the federal government with the vast range of governmental
powers left to the constituent units. The difference is strikingly
illustrated by the British North America Act, 1867, 30 Vict., c. 3,
and the Commonwealth of Australia Constitution Act, 1900, 63 &
64 Vict., c. 12. It is relevant to remind that our Constitution is
one of particular powers given to the National Government with the
powers not so delegated reserved to the States or, in the case of
limitations upon both governments, to the people. Except insofar as
penal remedies may be provided by Congress under the explicit
authority to "make all Laws which shall be necessary and proper for
carrying into Execution" the other powers granted by Art. I, § 8,
the bulk of authority to legislate on what may be compendiously
described as criminal justice, which, in other nations, belongs to
the central government, is, under our system, the responsibility of
the individual States.
The choice of this form of federal arrangement was the product
of a jealous concern lest federal power encroach upon the proper
domain of the States and upon the rights of the people. It was the
same jealous concern that led to the restrictions on the National
Government expressed by the first ten amendments, colloquially
known as the Bill of Rights. These provisions are deeply concerned
with procedural safeguards pertaining to criminal
Page 357 U. S. 376
justice within the restricted area of federal jurisdiction. They
are not restrictions upon the vast domain of the criminal law that
belongs exclusively to the States. [
Footnote 2] Needless to say, no statesman of his day cared
more for safeguarding the liberties that were enshrined in the Bill
of Rights than did James Madison. But it was his view that these
liberties were already protected against federal action by the
Constitution itself. "My own opinion," he wrote to Thomas
Jefferson,
"has always been in favor of a bill of rights, provided it be so
framed as not to imply powers not meant to be included in the
enumeration. At the same time, I have never thought the omission a
material defect, nor been anxious to supply it even by subsequent
amendment, for any other reason than that it is anxiously desired
by others. I have favored it because I supposed it might be of use,
and, if properly
Page 357 U. S. 377
executed, could not be of disservice. I have not viewed it in an
important light 1. Because I conceive that, in a certain degree,
though not in the extent argued by Mr. Wilson, the rights in
question are reserved by the manner in which the federal powers are
granted. . . . [
Footnote
3]"
Plainly enough, the limitations arising from the manner in which
the federal powers were granted were limitations on the Federal
Government, not on the States. The Bill of Rights that Madison
sponsored because others anxiously desired that these limitations
be made explicit patently was likewise limited to the Federal
Government. If conclusive proof of this were needed, it is afforded
by the fact that, when Madison came to sponsor the Bill of Rights
in the House of Representatives as safeguards against the Federal
Government, he proposed that like safeguards against the States be
placed in the United States Constitution. [
Footnote 4] Congress, however, rejected such
limitations upon state power.
Page 357 U. S. 378
While the adoption of the Fourteenth Amendment in 1868 did not
change the distribution of powers between the States and the
Federal Government so as to withdraw the basic interests of
criminal justice from the exclusive control of the States, it did
impose restrictions upon the States in the making and in the
enforcement of the criminal laws. It did this insofar as the
"fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions,"
Hebert v.
Louisiana, 272 U. S. 312,
272 U. S. 316;
Palko v. Connecticut, 302 U. S. 319;
Malinski v. New York, 324 U. S. 401,
324 U. S.
412-416,
324 U. S. 438,
are implied in the comprehensive concept of due process of law. But
this concept does not blur the great division of powers between the
Federal Government and the individual States in the enforcement of
the criminal law.
Generalities though these observations be, they bear decisively
on the issue that has been tendered in this case. To yield to the
contention of the petitioner would not only disregard the uniform
course of decision by this Court for over a hundred years in
recognizing the legal autonomy of state and federal governments.
[
Footnote 5] In these
Page 357 U. S. 379
days of the extensive sweep of such federal statutes as the
income tax law and the criminal sanctions for their evasions,
investigation under state law to discover corruption and
misconduct, generally, in violation of state law could easily be
thwarted if a State were deprived of its power to expose such
wrongdoing with a view to remedial legislation or prosecution.
While corruption and generally low standards in local government
may not today be as endemic as Lord Bryce reported them to be in
The American Commonwealth (1888), not even the most cheerful view
of the improvements that have since taken place can afford
justification for blunting the power of States to ferret out, and
thereby guard against, such corruption by restrictions that would
reverse our whole constitutional history. To achieve these
essential ends of state government, the States may find it
necessary, as did New York, to require full disclosure in exchange
for immunity from prosecution. This cannot be denied on the claim
that such state law of immunity may expose the potential witness to
prosecution under federal law.
See Jack v. Kansas,
199 U. S. 372.
Every witness before a state grand jury investigation would feel
free to block those vitally important proceedings.
In construing the Fifth Amendment and its privilege against
self-incrimination, one must keep in mind its
Page 357 U. S. 380
essential quality as a restraint upon compulsion of testimony by
the newly organized Federal Government at which the Bill of Rights
was directed, and not as a general declaration of policy against
compelling testimony. It is plain that the amendment can no more be
thought of as restricting action by the States than as restricting
the conduct of private citizens. The sole -- although deeply
valuable -- purpose of the Fifth Amendment privilege against
self-incrimination is the security of the individual against the
exertion of the power of the Federal Government to compel
incriminating testimony with a view to enabling that same
Government to convict a man out of his own mouth.
Of course, the Federal Government may not take advantage of this
recognition of the States' autonomy in order to evade the Bill of
Rights. If a federal officer should be a party to the compulsion of
testimony by state agencies, the protection of the Fifth Amendment
would come into play. Such testimony is barred in a federal
prosecution,
see Byars v. United States, 273 U. S.
28. Whether, in a case of such collaboration between
state and federal officers, the defendant could successfully assert
his privilege in the state proceeding we need not now decide, for
the record before us is barren of evidence that the State was used
as an instrument of federal prosecution or investigation.
Petitioner's assertion that a federal prosecuting attorney
announced his intention of cooperating with state officials in the
prosecution of cases in a general field of criminal law presents a
situation devoid of legal significance as a joint state and federal
endeavor.
This Court, with all its shifting membership, has repeatedly
found occasion to say that, whatever inconveniences and
embarrassments may be involved, they are the price we pay for our
federalism, for having our people amenable to -- as well as served
and protected by -- two governments. If a person may, through
immunized self-disclosure
Page 357 U. S. 381
before a law-enforcing agency of the State, facilitate to some
extent his amenability of federal process, or vice versa, this too
is a price to be paid for our federalism. Against it must be put
what would be a greater price, that of sterilizing the power of
both governments by not recognizing the autonomy of each within its
proper sphere.
Judgment affirmed.
[
Footnote 1]
No force or validity is added to petitioner's argument by the
invocation of the Supremacy Clause, Art. VI, cl. 2, and the
Privileges and Immunities Clause of the Fourteenth Amendment.
Whatever the applicability of the Fifth Amendment, it is in no way
expanded by those two provisions.
Cf. Twining v. New Jersey,
supra, at
211 U. S. 99:
"[T]he exemption from compulsory self-incrimination is not a
privilege or immunity of National citizenship. . . ."
[
Footnote 2]
In 1883, Mr. Chief Justice Marshall had this to say:
"Had the framers of these amendments intended them to be
limitations on the powers of the state governments, they would have
imitated the framers of the original Constitution, and have
expressed that intention. Had congress engaged in the extraordinary
occupation of improving the constitutions of the several states by
affording the people additional protection from the exercise of
power by their own governments in matters which concerned
themselves alone, they would have declared this purpose in plain
and intelligible language."
"But it is universally understood, it is a part of the history
of the day, that the great revolution which established the
Constitution of the United States was not effected without immense
opposition. Serious fears were extensively entertained that those
powers which the patriot statesmen who then watched over the
interests of our country deemed essential to union, and to the
attainment of those invaluable objects for which union was sought,
might be exercised in a manner dangerous to liberty. In almost
every convention by which the constitution was adopted, amendments
to guard against the abuse of power were recommended. These
amendments demanded security against the apprehended encroachments
of the general government -- not against those of the local
governments."
Barron v.
Baltimore, 7 Pet. 243,
32 U. S.
250.
[
Footnote 3]
Letter to Thomas Jefferson, Oct. 17, 1788, 14 Papers of Thomas
Jefferson (Boyd ed. 1958) 16, 18. Madison went on to give the
following additional reasons for his view:
"2. Because there is great reason to fear that a positive
declaration of some of the most essential rights could not be
obtained in the requisite latitude. I am sure that the rights of
conscience, in particular, if submitted to public definition, would
be narrowed much more than they are likely ever to be by an assumed
power. . . . 3. Because the limited powers of the federal
Government and the jealousy of the subordinate Governments afford a
security which has not existed in the case of the State
Governments, and exists in no other. 4. Because experience proves
the inefficacy of a bill of rights on those occasions when its
control is most needed."
14
id. at 18-19. The entire rather long letter merits
reading. For an account of Madison's management of the resolution
that became the Bill of Rights,
see Brant, James Madison:
Father of the Constitution, 1787-1800, c. 21.
[
Footnote 4]
"Mr. Madison conceived this to be the most valuable amendment in
the whole list. If there were any reason to restrain the Government
of the United States from infringing upon these essential rights,
it was equally necessary that they should be secured against the
State Governments. He thought that, if they provided against the
one, it was as necessary to provide against the other, and was
satisfied that it would be equally grateful to the people."
1 Annals of Cong. 755 (1789).
[
Footnote 5]
By 1900, the applicability of the Bill of Rights to the States
had been rejected in cases involving claims based on virtually
every provision in the first eight Articles of Amendment.
See,
e.g., Article I:
Permoli v. First Municipality
No. 1, 3 How. 589,
44 U. S. 609
(free exercise of religion);
United States v. Cruikshank,
92 U. S. 542,
92 U. S. 552
(right to assemble and petition the Government); Article II:
United States v. Cruikshank, supra, at
92 U. S. 553
(right to keep and bear arms); Article IV:
Smith v.
Maryland, 18 How. 71,
59
U. S. 76 (no warrant except on probable cause);
Spies v. Illinois, 123 U. S. 131,
123 U. S. 166
(security against unreasonable searches and seizures); Article V:
Barron v. Baltimore, note
2 supra, 7 Pet. at
32 U. S. 247
(taking without just compensation);
Fox v.
Ohio, 5 How. 410,
46 U. S. 434
(former jeopardy);
Twitchell v.
Pennsylvania, 7 Wall. 321,
74 U. S.
325-327 (deprivation of life without due process of
law);
Spies v. Illinois, supra, at
123 U. S. 166
(compulsory self-incrimination);
Eilenbecker v. Plymouth
County, 134 U. S. 31,
134 U. S. 34-35
(presentment or indictment by grand jury); Article VI:
Twitchell v. Pennsylvania, supra, 7 Wall. at
74 U. S.
325-327 (right to be informed of nature and cause of
accusation);
Spies v. Illinois, supra, at
123 U. S. 166
(speedy and public trial by impartial jury);
In re Sawyer,
124 U. S. 200,
124 U. S. 219
(compulsory process);
Eilenbecker v. District Court of Plymouth
County, supra, at
134 U. S. 34-35
(confrontation of witnesses); Article VII:
Livingston's Lessee v.
Moore, 7 Pet. 469,
32 U. S.
551-552 (right of jury trial in civil cases);
Justices v.
Murray, 9 Wall. 274,
76 U. S. 278
(re-examination of facts tried by jury); Article VIII:
Pervear v.
Massachusetts, 5 Wall. 475,
72 U. S.
479-480 (excessive fines, cruel and unusual
punishments).
MR. JUSTICE BRENNAN, concurring.
I join the Court's opinion upon my understanding that the only
question we decide is that a witness who is granted immunity by a
State against state prosecution may be compelled to testify in a
state proceeding and cannot successfully assert the privilege
against self-incrimination under the Fifth Amendment.
I therefore do not believe that reconsideration of the holding
in
Feldman v. United States, 322 U.
S. 487, is necessary or appropriate in this case. In
view of the contrary suggestion in the dissent of MR. JUSTICE
BLACK, I think it proper, however, to note that, in joining the
Court's opinion, I should not be understood as believing that our
decision today forecloses reconsideration of the
Feldman
holding in a case requiring our decision of that question.
MR. CHIEF JUSTICE WARREN, dissenting.
There can be no doubt that the problem in this case is a problem
of federalism. Competing considerations of the greatest
significance are involved. But, in resolving questions that touch
upon the intricate and delicate mechanism of our federal system, it
is especially important to remember, as Mr. Justice Holmes
observed, that "[g]eneral propositions do not decide concrete
cases."
Lochner v. New York, 198 U. S.
45,
198 U. S. 76. In
this case, the New York courts sustained petitioner's conviction of
the understanding
Page 357 U. S. 382
that, in the circumstances of this case, the testimony
petitioner was compelled to give before the New York State grand
jury could not, as a matter of federal law, be employed in a
subsequent federal prosecution. On the other hand, it is implicit
in the majority opinion in this Court that the petitioner does run
the risk of a federal prosecution based on his own testimony under
Feldman v. United States, 322 U.
S. 487. If we are to have any profitable discussion of
federalism based on the facts of this case, we should begin with
agreement on the facts and the controlling principles. In any
event, we should not affirm a New York conviction if, in fact, the
state courts construed state law under a misconception of federal
law. To do so does violence to the vital principle of federalism
that a state court is the final arbiter of state law.
See May
v. Anderson, 345 U. S. 528,
345 U. S.
534-535. I therefore agree with MR. JUSTICE BLACK that
this case should be remanded so that the New York Court of Appeals
can reconsider state law in light of the majority's conclusion that
the role of the federal prosecutor was not such as to prevent use
of the state-compelled testimony against petitioner in a federal
prosecution. At all events, the unsettling influence that
Feldman has had upon the course of this litigation
indicates that a satisfactory solution cannot be reached without a
reconsideration of that decision.
MR. JUSTICE BLACK, whom MR. JUSTICE DOUGLAS joins,
dissenting.
Petitioner refused to answer questions directed to him by a New
York grand jury on the ground that his answers might tend to
incriminate him under both state and federal law. He was then
granted immunity from prosecution under state law and ordered to
answer. When he
Page 357 U. S. 383
persisted in his refusal, he was found guilty of contempt and
sentenced to jail. In reviewing his conviction, the Appellate
Division of the New York Supreme Court rejected the contention that
it violated both State and Federal Constitutions to punish him for
declining to give testimony which might have incriminated him under
federal law. 2 A.D.2d 579, 157 N.Y.S.2d 158.
Article I, § 6 of the New York Constitution, like the Fifth
Amendment, provides that "No person . . . shall be compelled in any
criminal case to be a witness against himself." The Appellate
Division ruled that this state provision had not been infringed,
pointing out (1) that petitioner had been granted immunity from
state prosecution and (2) his answers could not be used to convict
him of a federal crime, since the record showed that the federal
district attorney had "cooperated" with state officers in the grand
jury investigation. The New York Court of Appeals affirmed without
opinion. 2 N.Y.2d 913, 161 N.Y.S.2d 437, 141 N.E.2d 825.
In affirming, this Court evidently takes the position, contrary
to the Appellate Division, that whatever cooperation between
federal and state officials is disclosed by this record it is not
enough to bar use of petitioner's testimony in a federal
prosecution. In the light of this, it seems to me that the proper
course would be to vacate the judgment of the New York Court of
Appeals and remand so that the courts of that State might consider
petitioner's claim of privilege under the New York Constitution
free from the erroneous assumption that his testimony could not be
used to convict him of a federal crime.
See Standard Oil Co. of
California v. Johnson, 316 U. S. 481.
Cf. Patterson v. Alabama, 294 U.
S. 600,
294 U. S. 607;
28 U.S.C. § 2106. Otherwise, petitioner will go to jail when there
is at least a chance that the New York courts would not have upheld
his conviction had they
Page 357 U. S. 384
known, as they now do, that his state-compelled testimony could
be used against him in the federal courts. [
Footnote 2/1]
I think it is also appropriate to say a few words here about
Feldman v. United States, 322 U.
S. 487, which was referred to by the Appellate Division.
In that case, a minority of this Court held, 4-3, that information
extracted from a person by state authorities under threat of
punishment could be used to convict him of a federal crime.
[
Footnote 2/2] The passage of time
has only strengthened my conviction that this result is thoroughly
contrary to the guarantee of the Fifth Amendment that no person
shall be compelled to be a witness against himself, at least in a
federal prosecution. The untenability of the premises upon which
the Court relied in
Feldman has been clearly revealed in a
series of penetrating law review articles by Professor J. A. C.
Grant. Immunity from Compulsory Self-Incrimination in a Federal
System of Government, 9 Temple L.Q. 57, 194; Federalism and
Self-Incrimination, 4 U.C.L.A.Law Rev. 549, 5
id., 1.
Feldman places a witness who is called before a state
agency and ordered to testify in a desperate position; he must
either remain silent and risk state imprisonment for contempt or
confess
Page 357 U. S. 385
himself into a federal penitentiary.
See Marcello v. United
States, 196 F.2d 437. Indeed things have now reached the
point, as the result of
United States v. Murdock,
284 U. S. 141,
Feldman, and the present case, where a person can be
whipsawed into incriminating himself under both state and federal
law even though there is a privilege against self-incrimination in
the Constitution of each.
Cf. Irvine v. California,
347 U. S. 128;
United States v. Kahriger, 345 U. S.
22. I cannot agree that we must accept this intolerable
state of affairs as a necessary part of our federal system of
government.
[
Footnote 2/1]
In Michigan at least, the state constitution has been
interpreted as preventing state officers from compelling disclosure
of facts which might tend to incriminate the witness under federal
law, even though he has been granted full immunity from state
prosecution.
People v. Den-Uyl, 318 Mich. 645, 29 N.W.2d
284.
Cf. State ex rel. Doran v. Doran, 215 La. 151, 39 So.
2d 894.
[
Footnote 2/2]
Contrast Bram v. United States, 168 U.
S. 532, where this Court ruled that an involuntary
confession could not be used in a federal prosecution even though
it was procured by officers of a foreign nation outside the United
States.
And see Ashcraft v. Tennessee, 322 U.
S. 143, at
322 U. S. 155,
where we declared that
"The Constitution of the United States stands as a bar against
the conviction of any individual in an American court by means of a
coerced confession."
It seems to me that there was at least as much coercion in
Feldman as in either of these cases.