Petitioner, a New York City police officer, was subpoenaed
before one of the grand juries investigating alleged bribery of
public officials. He appeared without counsel and signed a waiver
of immunity upon the prosecutor's advice that failure to do so
would subject him to removal from public office. The New York
Constitution and the New York City Charter provide for forfeiture
of employment by a public employee who invokes the privilege
against self-incrimination or who refuses to waive immunity from
prosecution. The waiver covered both the privilege against
self-incrimination and immunity from prosecution. Petitioner was
asked a few questions and given a questionnaire to fill out. He
appeared later before another grand jury and, having consulted
counsel, refused to sign a waiver of immunity. He was thereafter
discharged as a police officer. He was summoned again before the
first grand jury, refused on the basis of his federal and state
constitutional rights to answer questions, and again refused for
those reasons when thereafter directed by a judge to answer.
Following a hearing at which petitioner contended that the waiver
was invalid or, alternatively, had been effectively withdrawn, he
was found guilty of contempt and sentenced. He appealed to a state
appellate court, which dismissed the appeal in reliance on
Regan v. New York, 349 U. S. 58
reasoning that, if the immunity waiver was invalid, petitioner
would have received immunity from prosecution under New York
statutes, and that, if the waiver was valid, he no longer had a
privilege not to testify. Leave to appeal that dismissal was
denied. While review of the foregoing contempt conviction (before
this Court now in No. 210) was still pending, petitioner was again
summoned before the first grand jury, claimed his privilege,
refused to answer, was brought before another judge, refused again
to answer, was adjudged guilty of contempt, and served the
Page 383 U. S. 235
imposed. Petitioner was summoned before the grand jury for a
third time; on refusing to answer, he was again adjudged guilt of
contempt. While serving the sentence imposed for this third
contempt, petitioner sought habeas corpus in the Federal District
Court, which, on the basis of Regan
denied relief. The
Court of Appeals affirmed, and this Court grated the petition for
certiorari. (No. 290).
1. Petitioner's withdrawal of the waiver was, as a matter of
federal law, effective. Pp. 383 U. S.
2. Since the waiver had been effectively withdrawn, petitioner's
privilege against self-incrimination was available. Malloy v.
Hogan, 378 U. S. 1
383 U. S.
3. Under the applicable New York statutes, immunity is conferred
only by taking affirmative steps in strict compliance with the
current immunity statutes, and no such steps were taken in this
case. Pp. 383 U. S.
4. Having suggested to petitioner that he had no immunity from
prosecution, New York cannot thereafter claim that, in fact,
petitioner did have immunity within the "fair warning" requirement
of Raley v. Ohio, 360 U. S. 423
383 U. S.
-241; 383 U. S.
22 App.Div.2d 683, 253 N.Y.S.2d 401; 345 F.2d 305, reversed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner, a member of the New York City Police Department, was
summarily discharged on July 15, 1964. On June 26, he had been
subpoenaed before a New
Page 383 U. S. 236
York County grand jury, known as the First June 1964 Grand Jury.
Before appearing in the grand jury room, an Assistant District
Attorney advised him to sign a waiver of immunity, saying that
otherwise he would be subject to removal from public office.
] He signed the
waiver. [Footnote 2
he was an unsworn witness before the grand jury:
"Q. Lieutenant . . . Stevens, as was pointed out to you earlier,
this grand jury is inquiring into the
Page 383 U. S. 237
crimes of conspiracy to commit the crime of bribery of a public
officer and the crime of bribery of a public officer; do you
"A. I do."
"Q. Do you understand further that you have been called here as
a potential defendant, not as a witness; do you understand
"A. I do."
"Q. Do you understand that, under the Constitution of the United
States, you have the right to refuse to answer any questions that
might tend to incriminate you; do you understand that?"
"A. I do."
"Q. Do you understand further that, under the New York State
Constitution, and New York City Charter, a public officer is
required, if he desires to continue to hold his public position, to
sign a limited waiver of immunity; do you understand that?"
"A. I do."
"Q. Do you understand that that means that, if you sign a
limited waiver of immunity which requires you to answer questions
concerning the conduct of your public office, that what you say
will be taken down and recorded, and that, should this grand jury
vote a true bill against you, that is an indictment -- to indict
you for a crime, the testimony you give can and will be used
against you. Do you understand that?"
"A. I do."
"Q. Are you prepared to sign a waiver of immunity?"
"A. I am."
That petitioner's waiver of
"all benefits, privileges, rights and immunity which I would
Page 383 U. S. 238
from indictment, prosecution and punishment"
covered both the privilege against self-incrimination and
immunity from prosecution [Footnote
] is evidenced by the foregoing colloquy.
Then petitioner was sworn, asked a few questions, given a
questionnaire to fill out, and asked to return with it
At these stages, petitioner had no counsel. On July 15, he
returned to a different grand jury -- the Third July 1964 Grand
Jury. Now he had counsel and refused to sign a waiver of immunity.
He was examined, as before, concerning his knowledge that, to save
his job, he had to waive his immunity. He acknowledged that he knew
the consequences of his refusal to waive his immunity, and was
That same day, as a consequence of his refusal to waive immunity
before the Third July 1964 Grand Jury, petitioner was discharged as
a police officer.
On July 22, he was again summoned before the First June 1964
Grand Jury and put a certain question which he refused to answer on
the basis of his state and federal [Footnote 4
] constitutional rights. He was brought before a
judge who directed him to answer the questions. He refused to
answer "on the grounds stated in the State and Federal
Constitution," and the judge found him in contempt. On July 28, a
hearing was held at which petitioner, through his counsel,
contended that the waiver was invalid or, alternatively, had been
effectively withdrawn. In either
Page 383 U. S. 239
event, his Fifth Amendment claim was valid under Malloy v.
Hogan, 378 U. S. 1
. For it
was agreed that "there is no claim that this witness has been given
immunity." [Footnote 5
] At the
conclusion of the hearing, petitioner was fined $250 and given 30
days in the civil jail in New York City for that contempt.
Petitioner promptly appealed to the Appellate Division of the New
York Supreme Court. While this appeal was pending, he sought and
was denied federal habeas corpus. Application of Stevens,
234 F. Supp. 25. The Appellate Division dismissed the appeal,
stating its belief that Regan v. New York, 349 U. S.
, was controlling. [Footnote 6
] 22 A.D.2d 683, 253 N.Y.S.2d 401. The New York
Court of Appeals denied leave to appeal. 15 N.Y.2d 483, 257
N.Y.S.2d 1025, 205 N.E.2d 315. This is the conviction which is the
basis of the petition in No. 210.
Page 383 U. S. 240
Thereafter, on September 28, petitioner was summoned again
before the First June 1964 Grand Jury. Once again a question was
put him, and once more he refused to answer, claiming his privilege
which, as we have said, was available to him under Malloy v.
if the waiver was invalid or had been
effectively withdrawn. He was brought before another judge, who
directed him to answer the question. On refusal, petitioner was
held in contempt and fined $250 and sentenced to 30 days in jail.
] On January 11,
1965, petitioner was once more summoned before the First June 1964
Grand Jury, and refused again to answer a question on the ground
that it was incriminating. He was taken before a judge and directed
to answer. On his refusal, he was fined $250 and sentenced to 30
days. While serving that jail term, petitioner once again sought a
writ of habeas corpus in the United States District Court. The
court denied relief, indicating that it regarded Regan v. New
binding authority. United States ex rel.
Stevens v. McCloskey, 239 F.
. The Court of Appeals for the Second Circuit
affirmed. 345 F.2d 305. It is this last conviction that is the
basis of petitioner's application for a writ of habeas corpus in
Both cases are here on writs of certiorari. 382 U.S. 809.
Not once in any of the hearings was petitioner told that, if he
responded with incriminating answers, the state immunity statute
might preclude a prosecution based on such answers. On the
contrary, the Assistant District Attorney made it clear that the
view of the prosecution was that petitioner had waived any rights
he might have had under the immunity statute:
"Q. And was it further told to you that it meant that if you
signed a limited waiver of immunity
Page 383 U. S. 241
which required you to answer questions concerning your conduct
in public office, that what you said would be taken down and
recorded, and that, should this grand jury vote a true bill against
you, that is an indictment, the testimony you gave could be and
will be used against you? Was that explained to you?"
"A. I believe it was, yes, sir."
"Q. And did you tell this grand jury you understood that?"
"A. That's right."
The Assistant District Attorney went on to say:
"Q. And do you understand further that, regardless of what your
lawyer may say or what anyone else may say, that it is the
contention of the People that this is a valid waiver of immunity,
and that you do not have immunity? Do you understand that?"
"A. Yes, sir."
As we read this record, petitioner was led to believe that he
could invoke his federal privilege against self-incrimination only
on pain of losing his public employment; that, to retain his job,
he was obliged to sign a waiver; and that, should he sign a waiver,
he would have no immunity in answering incriminating questions.
Throughout the various appearances petitioner made before the grand
juries and in the New York courts which held him in contempt, the
prosecution consistently maintained that petitioner's waiver was
valid. And there was never any suggestion that if, as petitioner
contended, the waiver were invalid or effectively withdrawn, he
might obtain a valid immunity from subsequent prosecution.
Here lies the difference between this case and Regan v. New
For, after that case arose, New York amended its
immunity statute. Instead of conferring automatic immunity on all
witnesses who testify before
Page 383 U. S. 242
the grand jury, immunity is now conferred "only by strict
compliance with the procedural requirements of our immunity
statutes properly enacted. . . ." People v. Laino,
N.Y.2d 161, 173, 218 N.Y.S.2d 647, 657, 176 N.E.2d 571, 579.
Section 381 of the Penal Law, as amended in 1953, McKinney's
Consol.Laws c. 40, [Footnote 8
provides that in any bribery investigation "the court, magistrate
or grand jury, or the committee may confer immunity in accordance
with the provisions" of § 2447. The latter section provides that an
investigating grand jury is among those "authorized to confer
immunity" in a proceeding relating to bribery, provided that
certain procedural steps are taken: (a) the witness must refuse to
answer on the ground of self-incrimination; (b) the grand jury must
then be "expressly requested by the prosecuting attorney to order
such person to . . . answer"; (c) the grand jury must then order
the person to answer; (d) the witness must then comply with the
order to answer; and (e) thereupon "immunity shall be conferred."
Under these laws, immunity is not automatically conferred "merely
by testifying." People v. Laino, supra,
at 172, 218
N.Y.S.2d, at 656, 176 N.E.2d, at 578.
"Complete immunity from prosecution may be obtained by a
prospective defendant, or any witness, only by strict compliance
with the procedural requirements of our immunity statutes properly
enacted . . . or by virtue of immunity provisions in our State
Constitution. . . ."
at 173, 218 N.Y.S.2d at 657, 176 N.E.2d at 579.
In the present case, neither the prosecutor nor the grand jury
had any thought of conferring immunity on petitioner. They tried to
hold petitioner to his waiver. Yet, if he had gone ahead and
testified and it were established in a later prosecution that his
waiver was invalid, it seems that he would have been bereft of
Page 383 U. S. 243
any immunity under the New York law, since the requirements of
"strict compliance" had not been met. [Footnote 9
] Accordingly, only if the petitioner's waiver
was valid and binding was he bound to testify -- at least until the
affirmative steps necessary to confer immunity were taken. Whether
or not petitioner could validly assert the privilege against
self-incrimination depends on whether the waiver was, as he
contends, invalid or effectively withdrawn. Although the trial
judge which first found him in contempt ruled that the waiver was
valid, the Appellate Division considered that question irrelevant
in light of Regan v. New York.
Since, as we have seen, Regan
is inapposite, we
conclude that, at the time petitioner was held to be in contempt,
he had -- as a matter of federal constitutional law -- effectively
withdrawn the waiver. When petitioner was asked to waive his
federally secured right to refuse to answer the questions, he was
informed that failure to execute the waiver would result in the
loss of his public employment. Although it put petitioner to "a
choice between the rock and the whirlpool" (Frost Trucking Co.
v. Railroad Comm'n, 271 U. S. 583
271 U. S.
), New York says that, having "voluntarily" waived
his constitutional rights, petitioner may not thereafter claim his
privilege. At petitioner's first appearance before a grand jury
after having consulted with counsel, petitioner attempted to do
just that: he announced his intention to withdraw his waiver.
Even were we to assume, without deciding, that a State may
constitutionally exact, on pain of loss of employment and in the
absence of counsel, the waiver of a constitutional right, we would
be unable to find any justification
Page 383 U. S. 244
for denying the right to withdraw it. [Footnote 10
] We hold that petitioner's effort to
withdraw the waiver was effective, and that, in the absence of an
immunity provision clearly made applicable to him, petitioner could
properly stand on his privilege and refuse to answer potentially
One final point remains. Although the courts below did not
consider the possibility, the briefs suggest that petitioner might,
quite apart from the statutory immunity conferred by § 2447, have
been given immunity by operation of law. It is said that, as the
New York courts have interpreted the state constitution, a
potential defendant may not be compelled to appear before a grand
jury; any testimony given by him during such an appearance may not
thereafter be used against him. People v. Steuding,
N.Y.2d 214, 189 N.Y.S.2d 166, 160 N.E.2d 468; People v.
10 N.Y.2d 161, 218 N.Y.S.2d 647, 176 N.E.2d 571. Thus
it might be thought that this "automatic" immunity resulting from
petitioner's appearance before the grand jury makes this case
precisely identical with Regan.
We cannot agree. We need
not stop to determine whether the immunity said to be conferred
here -- which merely prevents the use of the defendant's testimony
or its fruits in any subsequent prosecution but, apparently, does
not preclude prosecution based on "independent" evidence
(People v. Laino, supra; People v. Ryan,
11 A.D.2d 155,
204 N.Y.S.2d 1) -- constitutes that "absolute immunity against
further prosecution" about which the Court spoke in Counselman
v. Hitchcock, 142 U. S. 547
142 U. S. 586
and which the Court said was necessary if the
Page 383 U. S. 245
privilege were to be constitutionally supplanted. And see
Albertson v. Subversive Activities Control Board, 382 U. S.
, 382 U. S. 79
For even if the Steuding-Laino
immunity were available to
petitioner, he was led to believe -- as we have already seen --
that no immunity provisions were applicable to his case.
In this sense, the case is very close to Raley v. Ohio,
360 U. S. 423
where the existence of immunity was never suggested to the
witnesses, later held in contempt. In that case, the State Supreme
Court held that the immunity under the statute was automatically
available to the witnesses and advice of the investigating agency
was not necessary. But we reversed those judgments of conviction
since what the State was doing was "convicting a citizen for
exercising a privilege which the State clearly had told him was
available to him" (id.
at 360 U. S.
), and we went on to say:
"A State may not issue commands to its citizens, under criminal
sanctions, in language so vague and undefined as to afford no fair
warning of what conduct might transgress them. Lanzetta v. New
Jersey, 306 U. S. 451
contradictory commands in statutes ordaining criminal penalties
have, in the same fashion, judicially been denied the force of
criminal sanctions. United States v. Cardiff, 344 U. S.
. Here there were more than commands simply vague or
even contradictory. There was active misleading. Cf. Johnson v.
United States, 318 U. S. 189
, 318 U. S.
. The State Supreme Court dismissed the statements of
the Commission as legally erroneous, but the fact remains that at
the inquiry they were the voice of the State most presently
speaking to the appellants. We cannot hold that the Due Process
Clause permits convictions to be obtained under such
at 360 U. S.
Page 383 U. S. 246
demonstrates that the State may not substitute
for the privilege against self-incrimination an intricate scheme
for conferring immunity, and thereafter hold in contempt those who
fail fully to perceive its subtleties. A witness has, we think, a
constitutional right to stand on the privilege against
self-incrimination until it has been fairly demonstrated to him
that an immunity, as broad in scope as the privilege it replaces,
is available and applicable to him. [Footnote 11
] This, it seems to us, is the teaching of
and, accordingly, the Steuding-Laino
immunity -- if otherwise applicable -- cannot now be invoked to
validate these contempt convictions.
* Together with No. 290, Stevens v. McCloskey, Sheriff,
on certiorari to the United States Court of Appeals for the Second
Article I, § 6, of the New York Constitution provides in
"No person shall be subject to be twice put in jeopardy for the
same offense; nor shall he be compelled in any criminal case to be
a witness against himself, providing, that any public officer who,
upon being called before a grand jury to testify concerning the
conduct of his present office or of any public office held by him
within five years prior to such grand jury call to testify, or the
performance of his official duties in any such present or prior
offices, refuses to sign a waiver of immunity against subsequent
criminal prosecution, or to answer any relevant question concerning
such matters before such grand jury, shall be virtue of such
refusal, be disqualified from holding any other public office or
public employment for a period of five years from the date of such
refusal to sign a waiver of immunity against subsequent
prosecution, or to answer any relevant question concerning such
matters before such grand jury, and shall be removed from his
present office by the appropriate authority or shall forfeit his
present office at the suit of the attorney-general."
The waiver read in part:
". . . all benefits, privileges, rights and immunity which I
would otherwise obtain from indictment, prosecution and punishment
for or on account of, regarding or relating to any matter,
transaction or thing, concerning the conduct of my office or the
performance of my official duties, or the property, government or
affairs of the State of New York or of any county included within
its territorial limits, or the . . . official conduct of any
officer of the city or of any such county, concerning any of which
matters, transactions or things I may testify or produce evidence,
documentary or otherwise, before the 1st, 1964 Grand Jury in the
County of New York, in the investigation being conducted by said
This was the view of the Appellate Division which, when
affirming petitioner's first contempt conviction, said: "[I]f the
waiver of immunity is still valid, petitioner no longer has any
privilege to refuse to testify." 22 A.D.2d 683, 684, 253 N.Y.S.2d
Malloy v. Hogan, 378 U. S. 1
that the Fourteenth Amendment guaranteed a witness the protection
of the Fifth Amendment's privilege against self-incrimination, was
decided June 15, 1964.
Petitioner's counsel made the following statement:
"May we also have the record clarified, Your Honor. It is my
understanding, based on what was said here the last time in court
before Your Honor, that there is no claim that this witness has
been given immunity. The claim is that he has signed a valid
waiver, and that he refused to testify under it, and that is why
Your Honor has found him guilty of criminal contempt, is that
The court replied, "That covers the situation."
Regan v. New York
arose under an earlier version of the
New York immunity law, which conferred automatic immunity from
prosecution on anyone who testified before the grand jury. Regan
had, like petitioner, executed a waiver of immunity, and later
sought to repudiate it. Unclear of his rights, Regan refused to
testify though ordered to do so. This Court affirmed his contempt
conviction, refusing to consider questions raised as to the
validity of his waiver and the efficacy of his efforts to withdraw
it. The Court's theory was that, regardless of the validity of the
waiver, Regan was bound to answer the questions put to him: if the
waiver was valid and binding, then, of course, he must answer,
since he had waived the right to refuse to do so. If the waiver was
invalid, then petitioner would have immunity from prosecution, and
thus could not rely on the privilege against
This sentence was served.
See Regan v. New York, 349 U. S.
, 349 U. S. 59
note 2, and accompanying text, for a discussion of the earlier
version of that section.
That immunity was never properly conferred on petitioner was, as
we read this record, recognized by petitioner's counsel and by the
judge which first found him in contempt of court. See
note 5 supra,
As for the suggestion that withdrawal of the waiver in
mid-hearing poses an administrative inconvenience, we only note
that there was no such inconvenience here. Petitioner had answered
only a few perfunctory questions at his first appearance before the
grand jury. He asserted his desire to withdraw the waiver
immediately upon returning before the grand jury.
The suggestion that we should remand the case to the New York
courts for a finding of whether or not petitioner was misled is, we
think, wide of the mark. A State must affirmatively demonstrate to
the witness that a valid immunity from prosecution is his before it
may hold him in contempt for refusing to answer questions that
would otherwise be incriminating. Whether the State has met its
burden must be measured at the time of the alleged contempt. A
declaration that there was a valid immunity uttered for the first
time on appeal would come too late.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, concurring
in part and dissenting in part.
Proper disposition of these cases is rendered more difficult
because of seeming confusion that has attended them all along the
line. In the courts below, the significance of an important New
York statutory amendment was apparently overlooked. This Court
granted certiorari limited to a question which, in my view, the
record does not present, and which the Court does not answer.
] The judgments below
are now reversed on different
Page 383 U. S. 247
grounds never properly set forth by petitioner. With this
background, a good case could be made for dismissing the writs as
improvidently granted. However, I believe briefing and argument
have brought to the fore errors sufficiently plain to warrant
setting aside these judgments, although my analysis differs from
the Court's, and I consider that a remand, and not an outright
reversal, is called for.
It is common ground that petitioner cannot be jailed for
refusing to incriminate himself unless either he waived his federal
privilege against self-incrimination or immunity adequate to offset
that privilege was conferred upon him. Taking up the first
possibility -- waiver of the privilege against self-incrimination
-- it seems to me evident that petitioner was never asked to sign,
nor did he sign, a waiver of that privilege. What the New York
Constitution and the New York City Charter explicitly require be
signed, and what petitioner did in terms sign, is a waiver of
immunity from criminal prosecution, that is, a waiver not of the
federal privilege, but of the state immunity that may be granted to
circumvent the privilege. [Footnote
] That a waiver of the privilege and a waiver of immunity
may both often lead a witness to incriminate himself is no reason
to blur these two different legal concepts. A State in exacting a
waiver of the privilege should turn square corners; New York did
not ask for, nor did it obtain, a waiver of the privilege in
Page 383 U. S. 248
this instance, so that basis for justifying the contempt
convictions is out of the case. The only other basis is a claim
that New York has conferred immunity upon petitioner adequate to
replace the privilege.
Before turning to that issue, it should be noted that there can
be no reason to consider now whether petitioner's purported waiver
of immunity was ineffective or withdrawn. If the Court is right in
saying that no statutory immunity was ever conferred and that
immunity under the state constitution cannot now be relied on by
New York because of Raley v. Ohio, 360 U.
, then it is hardly necessary to decide if this
never-conferred immunity was adequately waived or the waiver
effectively withdrawn. If New York did properly confer adequate
immunity, and so offset the privilege, then, under Regan v. New
York, 349 U. S. 58
, it is
irrelevant at this stage whether petitioner has or has not lost the
benefits of that immunity through waiver, since he is obliged to
testify in either event. Adequacy or withdrawal of a waiver of the
privilege against self-incrimination might sometimes be relevant at
this stage, but no waiver of the privilege was even attempted in
this instance, as I have noted above. On this phase of the case, it
only remains for me to demur to the Court's statement that "we
would be unable to find any justification for denying the right to
withdraw" the waiver (pp. 383 U. S.
). New York has the very deepest
interest in uprooting and punishing misconduct by its officials; it
also has a narrower interest in having an investigation, commenced
on the premise of a waiver, not suddenly balked by the witness'
change of heart. It seems to me there is no federal constitutional
reason why a witness who has properly given a voluntary waiver
either of his privilege or his immunity should not be held to
Turning now to the conferral of immunity as a means of
offsetting the privilege and justifying these convictions,
Page 383 U. S. 249
I agree with the Court that the pertinent New York statute quite
plainly is no longer an automatic immunity statute, and that it was
not brought into play in this instance. While further consideration
on this score should not be foreclosed on the remand, which, for
reasons later indicated, I believe should take place here,
People v. Laino,
10 N.Y.2d 161, 218 N.Y.S.2d 647, 176
N.E.2d 571, seems fairly persuasive that this literal construction
of the statute is accurate. [Footnote
] Disregarding the statute, then, the convictions can stand
only if immunity adequate to offset the privilege flowed from the
state constitution, and if petitioner was not misled in his
reliance on the privilege. For reasons now set forth, I believe
these questions should be decided only after a remand to the state
As construed in Laino,
the New York Constitution gives
automatic immunity only against use of compelled testimony and its
fruits, 10 N.Y.2d at 173, 218 N.Y.S.2d at 657, 176 N.E.2d at 579,
and the Court today leaves undecided the question whether this
immunity is sufficient to supplant the privilege. While the
reference to "absolute immunity against further prosecution" in
Counselman v. Hitchcock, 142 U. S. 547
142 U. S. 586
may point toward a negative answer, I agree that the question ought
not be decided until it is necessarily presented after a full
briefing and argument by the parties. It is perhaps reason
Page 383 U. S. 250
enough for postponement that the negative answer would perforce
invalidate one or more federal statutes which protect only against
later use of compelled testimony. [Footnote 2/4
] In addition, this Court has recently
extended the Fifth Amendment to the States, Malloy v.
Hogan, 378 U. S. 1
abolished the "two sovereignties" rule, Murphy v. Waterfront
Comm'n, 378 U. S. 52
that an expansive reading of the privilege could have a far more
serious impact than was true in the days of Counselman.
] In any event, the
question need not be reached if Raley v. Ohio,
360 U. S. 423
governs the instant case.
As I read Raley,
it holds that the State may not lead
witnesses into believing that no immunity provisions are applicable
and then, when the witnesses stand on their privilege, hold them in
contempt on the ground that immunity provisions supplanted the
privilege. In this case, the Court apparently believes that
statements of the prosecutor and trial court led petitioner to
think that no immunity provisions applied to him even contingently;
if this is so, then I would agree the State cannot now rely on the
state constitution, or the state statute, for that matter, to
negative petitioner's privilege. However, there are no findings on
how petitioner understood the statements made to him, and they are
certainly susceptible of quite a different interpretation. It may
well be that the State meant, and was understood by the petitioner,
to convey only that it believed petitioner's waiver of immunity to
be valid and irrevocable so that it would attempt to prosecute him
on the basis of any testimony he gave. On this reading, it is quite
Page 383 U. S. 251
that both the State and petitioner believed that adequate
immunity provisions were generally applicable to the extent of
supplanting the privilege, and that petitioner would be shielded at
a later trial if the State there proved to be wrong in its views on
waiver. [Footnote 2/6
] If so, and
assuming the state constitution does, in law, provide adequate
immunity, then petitioner was obliged to testify under
and was not relevantly misled. [Footnote 2/7
] The present record was not formulated
with regard to the Raley
problem, that issue was not
briefed in its present form, and it seems to me wrong to decide the
point without a remand.
I would vacate both judgments and remand the case to the state
courts [Footnote 2/8
] so the State
may there try to establish that apart from a possible waiver
adequate immunity was conferred, and so that petitioner may try to
show that he was misled on this score.
Certiorari was limited to the question whether a law is
unconstitutional which requires the discharge and bars the rehiring
of any public officer who refuses to sign a waiver of immunity and
claims his privilege against self-incrimination. 382 U.S. 809.
N.Y.Const., Art. I, § 6, requires "a waiver of immunity against
subsequent criminal prosecution," and the New York City Charter, §
1123, requires that one "waive immunity from prosecution." The
document signed by petitioner stated that he waived "all benefits,
privileges, rights and immunity which I would otherwise obtain from
indictment, prosecution and punishment. . . ." N.Y. Penal Law §
2446 states that, where any law provides that a person shall not be
prosecuted because of his testimony or that testimony he gives
shall not be used against him, that person may file a statement
"expressly waiving such immunity or privilege."
the New York Court of Appeals stated that
immunity under the state statutes could be acquired only "by strict
compliance with the procedural requirements. . . ." 10 N.Y.2d at
173, 218 N.Y.S.2d at 657, 176 N.E.2d at 579. N.Y. Penal Law § 2447,
governing the procedure for conferring statutory immunity, provides
that, in the case of a grand jury, the grand jury must be
"expressly requested" by the prosecutor to order the witness to
answer and the grand jury must give that order; there appears to
have been neither request nor order in this case. That courts might
"estop" the prosecutor from later prosecuting in these
circumstances should not be taken as the deliberate, assured grant
of immunity the Constitution requires.
49 U.S.C. § 9 (1964 ed.). See generally
Murphy v. Waterfront Comm'n, 378 U. S. 52
378 U. S. 104
n. 6 (concurring opinion of Mr. Justice White).
A number of States appear to provide immunity no greater than
that implied by the New York Constitution. See, e.g.,
Ariz.Rev.Stat.Ann. § 13-384; Conn.Gen.Stat. § 12-2.
It should be noted that nothing in the record indicates that
petitioner raised the Raley
argument in the lower courts,
and that case was not even cited in his petitions for
In a footnote, the Court appears to announce as a new and
distinct principle that "[a] State must affirmatively demonstrate
to the witness that a valid immunity from prosecution is his"
before overriding the privilege (p. 383 U. S. 246
n. 11, ante
). Reading the words "valid immunity"
literally, the statement is simply inconsistent with
If, instead, the Court means that immunity --
albeit contingent on the invalidity of a waiver -- must be
"affirmatively demonstrated," regardless of whether the State
misled the witness and regardless of whether the witness well knew
he had contingent immunity, then I disagree with that proposition,
which is not supported by Raley.
The case to be so remanded is No. 210; No. 290, which originated
in the Federal District Court as a habeas corpus suit, should be
returned there to await the outcome of any further state