Writ of certiorari, granted to resolve question whether
"transactional," rather than "use," immunity is constitutionally
required to compel a witness to testify before a New York grand
jury, is dismissed as improvidently granted in light of another
decision by highest state court holding that transactional immunity
is required in New York, and that its earlier decision in the
instant case may have rested on that premise.
24 N.Y.2d 598, 249 N.E.2d 412, certiorari dismissed.
PER CURIAM.
The occasion for granting the writ in this case was to resolve
the important question whether it is necessary to accord
"transactional" immunity,
see Counselman v. Hitchcock,
142 U. S. 547
(1892), to compel a witness to give testimony before a state grand
jury over his claim of the privilege against self-incrimination, or
whether mere "use" immunity suffices to that end,
see, e.g.,
Murphy v. Waterfront Comm'n, 378 U. S. 52
(1964);
Uniformed Sanitation Men Assn. v. Commissioner of
Sanitation of the City of New York, 426 F.2d 619 (CA2
1970).
After considering the briefs and oral arguments of the parties
on this writ, we have reached the conclusion that the decision of
the New York Court of Appeals in
Gold v. Menna, 25 N.Y.2d
475, 255 N.E.2d 235 (1969), which makes clear that transactional
immunity is required in New York and also indicates that such
court's earlier
Page 400 U. S. 549
decision in the case before us,
People v. La Bello, 24
N.Y.2d 598, 249 N.E.2d 412 (1969), may have rested on that premise,
makes this case an inappropriate vehicle for deciding a question of
such far-reaching importance.
With the intervening decision in
Gold, no controversy
any longer exists between the parties as to the question which
impelled us to grant the writ: whether, in the circumstances
involved in this case, Piccirillo was entitled to "use" or
"transactional" immunity. While it is true that, technically
speaking, issues remain in the case concerning the kind of immunity
required by federal law and, if it be "transactional" rather than
"use" immunity in such a case as this, the proper scope of such
immunity, both issues arise only against the sterile background of
agreement between the parties that Piccirillo is entitled to
"transactional" immunity under state law. Thus, our determination
upon the fundamental constitutional question underlying this case
would be in no sense necessary to its resolution in this
instance.
In this posture of affairs, we conclude that the writ of
certiorari should be dismissed as improvidently granted.
It is so ordered.
MR. JUSTICE BLACK dissents from the dismissal of this writ as
improvidently granted. He would vacate the judgment below and
remand the case to the New York Court of Appeals for
reconsideration in light of its later opinion in
Gold v.
Menna, 25 N.Y.2d 475, 255 N.E.2d 235.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs,
dissenting.
I do not approve dismissal of this writ as improvidently
granted.
Petitioner was indicted for assault committed by the use of tire
irons. He pleaded guilty and was sentenced
Page 400 U. S. 550
to imprisonment. Shortly thereafter a grand jury was impaneled
to investigate the assault on the victim and the conspiracies
arising in connection with it. Petitioner, while still serving the
sentence on the assault conviction, was called to testify before
the grand jury.
After refusing to testify, petitioner was granted immunity. He
then testified to the assault which he had perpetrated by the use
of tire irons. Four days later a police officer testified before
the grand jury that, after a chase, he had arrested petitioner and
another, and thereupon had taken the tire irons from them. The
officer also testified that following petitioner's arrest
petitioner had offered the officer a bribe to change his testimony.
Petitioner was subsequently indicted by the grand jury for bribery,
and, following an unsuccessful motion to dismiss based on the grant
of immunity, he pleaded guilty to attempted bribery. The New York
Court of Appeals held four-to-three that the New York immunity
statute only prohibited use of testimony and the fruits of the
testimony in a subsequent criminal proceeding and that the police
officer's testimony was in no way derived from anything petitioner
said. 24 N.Y.2d 598, 249 N.E.2d 412.
Counselman v. Hitchcock, 142 U.
S. 547, held that, once immunity was granted, it
protected the witness against prosecution not only for a crime that
relates to the precise testimony given, but also for the fruits of
such testimony.
Id. at
142 U. S.
564-565. But the Court went further:
"In view of the constitutional provision, a statutory enactment,
to be valid, must afford absolute immunity against future
prosecution for the offence to which the question relates."
Id. at
142 U. S. 586.
In
Brown v. Walker, 161 U. S. 591,
which involved another federal prosecution, the immunity statute
provided that the witness would be protected "on account of any
transaction . . . concerning which he may testify."
Id.
at
Page 400 U. S. 551
161 U. S. 594.
The Court held that the immunity offered was coterminous with the
privilege, and that the witness could therefore be compelled to
testify. Thus, "transactional immunity" became part of the fabric
of our federal constitutional law.
See Ullmann v. United
States, 350 U. S. 422,
350 U. S.
438.
Now that the Self-Incrimination Clause of the Fifth Amendment is
applicable to the States,
Malloy v. Hogan, 378 U. S.
1, the same immunity against state prosecutions must be
granted by the States as the Federal Government must grant against
federal prosecutions.
Id. at 111.
*
Subsequent to petitioner's case, the New York Court of Appeals
unanimously concluded that their statute provides transactional
immunity.
Gold v. Menna, 25 N.Y.2d 475, 255 N.E.2d 235.
Nevertheless, that court also concluded that petitioner would not
have benefited from the change of law because he gave no testimony
which related to the offense for which he was prosecuted.
Id. at 481 n. 1, 255 N.E.2d at 238 n. 1. That approach to
the problem is not in keeping with the generous interpretations
which the Fifth Amendment has heretofore received by this
Court.
Petitioner had just testified to the grand jury concerning facts
which provided the underlying basis for the bribery charge. The
grand jury knew petitioner had assaulted a man with tire irons
because petitioner himself told them so. The tire irons were the
"evidence" which according to the police officer petitioner had
tried to bribe him "to get rid of." They were the same tire irons
used in the assault for which he was convicted and sentenced, not
tire irons used to commit another assault. Moreover,
Page 400 U. S. 552
the bribery charge grew out of conversations which petitioner
had with the police officer the day of his arraignment on the
assault charge. It seems obvious that, if the transactional test is
to be honored, this is one of the clearest instances in which to do
so.
Accordingly, I would reverse the decision below.
* The present case is not complicated by the question whether
State immunity must extend immunity against federal prosecution.
See Murphy v. Waterfront Comm'n, 378 U. S.
52.
Cf. Abbate v. United States, 359 U.
S. 187.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
dissenting.
This case presents the question of the limitations required by
the Fifth Amendment's Self-Incrimination Clause upon subsequent
state prosecutions of an individual compelled by the State to
answer incriminating questions. Since, in my view, this case
presents a record that compels us to decide that question, I cannot
agree that the Court may dismiss the writ of certiorari as
improvidently granted. I therefore reach the merits and would
reverse the judgment of conviction and remand the case with
directions to dismiss the indictment.
I
Petitioner and a codefendant were arrested on March 19, 1964, by
a New York police officer, William Sewell, for assaulting one
Graham, a housing contractor. Patrolman Sewell recovered the tire
irons used in the assault from petitioner and the codefendant at
the time of the arrest. The following day, the two defendants were
arraigned and released on bond. But before leaving the courthouse,
they approached Patrolman Sewell and offered him $1,000 or $1,500
to dispose of the seized weapons. The honest Sewell refused the
offer and immediately notified the district attorney of the bribe
attempt. At the request of the prosecutor, Sewell later attended a
meeting with petitioner to confirm the bribe offer. The relevant
narrative skips a year during which petitioner and his codefendant
were indicted for attempted assault,
Page 400 U. S. 553
pleaded guilty, and were sentenced to jail. On March 18, 1965, a
year after the assault and bribery attempt, petitioner was summoned
from jail to appear before a grand jury investigating the
possibility of criminal conspiracies in connection with the assault
on Graham. The prosecutor, after informing petitioner of the
purpose of the investigation, told him that the grand jury was
going to vote on whether to give petitioner immunity, and explained
the meaning of immunity to petitioner as follows:
"I am going to ask this grand jury to vote on the question of
giving you immunity and under Penal Law Section 2447 for the
testimony that you will give in this grand jury, and that means
anything that I ask you and any answers that you give in answer to
my questions, if it connects you with the crime, you cannot be
prosecuted for it. That's immunity, do you understand that?"
App. 33. When the grand jury voted to grant immunity, the
petitioner said that he would answer the prosecutor's questions,
but that he would like to consult his lawyer. The prosecutor
refused permission, stating:
"Under these circumstances, you are not a defendant, you are a
witness, you have been given immunity. That means you cannot be
prosecuted. Your rights are fully protected, and there is no reason
for your conferring with your attorney, do you understand
that?"
App. 34. [
Footnote 1]
Petitioner then answered all questions admitting,
inter
alia, that he and his codefendant had been hired to assault
and had in fact, assaulted Graham; that the tire irons in the
possession of the police were the instruments they had
Page 400 U. S. 554
used in the assault; and that they had been surprised in the
midst of the assault and had run away but had been caught by the
police. The bribery attempt was not mentioned.
Four days later, Patrolman Sewell appeared before the same grand
jury and testified about the bribe attempt. Several months
thereafter, the grand jury indicted petitioner and his codefendant
for offering a bribe. Petitioner moved to dismiss the indictment on
the ground that the crime charged involved subject matter for which
petitioner had been granted immunity, as required by the Federal
Constitution. When the trial court denied the motion, petitioner
pleaded guilty. The New York Court of Appeals affirmed the
conviction, three judges dissenting.
People v. La Bello,
24 N.Y.2d 598, 249 N.E.2d 412 (1969). The New York court
interpreted the New York immunity statute to prevent only "the use
of the witness' testimony and any evidence derived therefrom." 24
N.Y.2d at 604, 249 N.E.2d at 416. After holding that this "use"
immunity satisfied the requirements of the Fifth Amendment, the New
York court affirmed petitioner's conviction based on its findings
that "[w]hatever evidence might have been revealed by the
appellants' testimony was wholly insubstantial," and that "the
indictment was not the product of that testimony." 24 N.Y.2d at
605, 249 N.E.2d at 416.
Seven months after its decision in petitioner's case, the New
York Court of Appeals, on December 4, 1969, in a case wholly
unrelated to petitioner's, reversed itself on the proper
interpretation of the New York immunity statute, holding that the
New York statute granted "immunity from prosecution for any crime
revealed by a witness' testimony before a Grand Jury."
Gold v.
Menna, 25 N.Y.2d 475, 481, 255 N.E.2d 235, 238. In a footnote
to
Gold, the New York court stated that,
Page 400 U. S. 555
even under its new interpretation, petitioner's conviction was
correctly affirmed because he and his codefendant "gave no
testimony which related or pertained to the offense for which they
were prosecuted and of which they were convicted." 25 N.Y.2d at 481
n. 1, 255 N.E.2d at 238 n. 1. We granted certiorari, 397 U.S. 933
(1970).
II
The fact that the New York Court of Appeals has reversed itself
and changed its interpretation of the New York immunity statute to
grant "transactional" immunity, and not merely "use" immunity as
that court held when it affirmed petitioner's conviction, provides
no basis for dismissing the writ of certiorari as improvidently
granted. The state court's interpretation of state law is, at best,
only tangentially related to the federal constitutional question
presented in this case. The petitioner here, upon being told "[Y]ou
have been given immunity. That means you cannot be prosecuted,"
proceeded to testify and answer all questions put to him about the
Graham assault. Subsequently, he was indicted and convicted for the
bribery attempt which arose out of that assault. The New York
courts have affirmed petitioner's conviction for bribery, holding
that the immunity granted by the state statute did not bar the
present conviction. At that point, the relevance to the
constitutional question of the scope of immunity afforded by the
state court's interpretation of state law ended. The question for
this Court is whether the Fifth Amendment, as applied to the States
by the Fourteenth Amendment, permits the present conviction to
stand in light of the substance of the compelled testimony and the
nature and basis of that conviction. That is a matter of federal
constitutional law which does not depend upon the interpretation of
the New York immunity statute.
Page 400 U. S. 556
The Court's wholly wrong focus upon the particular state
immunity statute [
Footnote 2]
involved results from its failure to distinguish two different
procedural postures in which the question of the scope of immunity
required by the Fifth Amendment can be raised. First, an individual
may rely on the Fifth Amendment privilege and refuse to answer a
question after he has been granted immunity pursuant to an immunity
statute and ordered to respond. If he is then held in contempt (or
otherwise penalized) for his refusal to answer, the question
presented in reviewing the contempt conviction (or other sanction)
is whether the statutory grant of immunity is coextensive with the
scope of the privilege against self-incrimination.
Malloy v.
Hogan, 378 U. S. 1 (1964);
Counselman v. Hitchcock, 142 U. S. 547
(1892). If the immunity granted is found to be coextensive with the
privilege, then the witness' refusal to answer based on the
privilege was unjustified, and the finding of contempt is proper.
Brown v. Walker, 161 U. S. 591
(1896). If, on the other hand, the immunity granted by the statute
falls short of the constitutional requirement, the witness properly
relied upon his constitutional privilege, and any sanction imposed
cannot stand.
McCarthy v. Arndstein, 266 U. S.
34,
266 U. S. 42
(1924). In these cases, analysis therefore necessarily focuses on
the particular provisions of the immunity statute in question and
on the nuances of its interpretation
Page 400 U. S. 557
because there is nothing else before the court. No testimony has
yet been compelled, and there has been no subsequent prosecution in
any way related to compelled testimony. Most of the cases in which
this Court has considered questions of immunity fall into this
category, [
Footnote 3] as do
the three cases other than the present case cited in the Court's
per curiam opinion.
The second class of cases, represented by the present one,
involves cases in which an individual is granted immunity, proceeds
to testify, and is then prosecuted and convicted for an offense
related to that testimony. Once the conviction is upheld under the
immunity statute, the question in thee cases becomes, not whether
the statute grants adequate immunity, but, rather, whether the
conviction involved, given the substance of the compelled
testimony, falls within the constitutionally required immunity.
This decision, of course, must be made on the basis of federal
standards under the Fifth Amendment.
Malloy v. Hogan,
supra.
Since the present case falls into the second group of cases, any
uncertainty over the interpretation of the state immunity statute
has little bearing on the question whether this Court, having
agreed to hear the case, ought to decide the merits. What is
relevant is that the present
Page 400 U. S. 558
case comes to this Court with a complete factual record raising
the constitutional question of the scope of immunity required by
the Fifth Amendment privilege. It is worth noting that cases
falling in the first class present the court with a bare record,
consisting of no more than the text of the immunity statute in
question and the witness' refusal to answer a question. Without a
factual record, the Court is required to decide "abstract
controvers[ies] over the use of . . . words,"
Real Knitwear Co.
v. NLRB, 324 U. S. 9,
324 U. S. 15
(1945), even though the Court has long recognized that important
constitutional issues are best decided on the basis of factual
records which tender the "underlying constitutional issues in
clean-cut and concrete form."
Rescue Army v. Municipal
Court, 331 U. S. 549,
331 U. S. 584
(1947). The absence of such a record is particularly unfortunate in
these Fifth Amendment cases because the constitutional issue posed
depends upon a judgment as to how broad a protection is necessary
to serve he values, purposes, and policies underlying the Fifth
Amendment. A factual record showing, for example, the substance of
the individual's compelled testimony, the way that testimony was
subsequently used by the prosecutor, and the crime for which the
individual was ultimately prosecuted, provides important
considerations to anchor and inform the constitutional
judgment.
Unlike most of the cases in which this Court has considered the
scope of immunity required by the Fifth Amendment, the present case
offers the Court that factual background.
In the nature of a confession and avoidance, the per curiam
concedes that the issues
"concerning the kind of immunity required by federal law and, if
it be 'transactional,' rather than 'use,' immunity in such a case
as this, the proper scope of such immunity"
are presented by petitioner's case, but offers three statements
in support
Page 400 U. S. 559
of dismissal. First, the Court states that
"no controversy any longer exists between the parties as to the
question which impelled us to grant the writ: whether, in the
circumstances involved in this case, Piccirillo was entitled to
'use' or 'transactional' immunity."
As the first sentence of the per curiam itself recognizes, the
question which impelled us to grant the writ was whether
the
Federal Constitution requires "use" or "transactional"
immunity, as those terms have been defined in federal
constitutional law. The parties have always disagreed and continue
to disagree over that question, [
Footnote 4] thus the
Page 400 U. S. 560
Court's statement that "no controversy any longer exists . . .
as to [that] question" is simply contrary to fact.
The Court then suggests that the "agreement between the parties
that Piccirillo is entitled to
transactional' immunity
under state law" (emphasis added) somehow renders this
case an inappropriate one for our decision on the federal
constitutional question. The phrase "transactional" immunity is
just that -- a phrase or shorthand symbol. Something labeled
"transactional" immunity by a state court may or may not coincide
with the constitutional "transactional" immunity defined by
decisions of this Court. Indeed, the petitioner vigorously argues
that the state immunity granted in this case falls far short of the
"transactional" immunity defined by federal constitutional
standards. Thus, it is fair to describe the "agreement" between the
parties to which the Court refers, as merely an agreement that the
New York Court of Appeals, in describing the immunity granted by
the state statute, used the label "transactional" immunity.
Moreover, since the State has finally affirmed petitioner's
conviction in this case, the precise formulation of the immunity
granted by state law does not, in any event, have any relevance to
our consideration of the constitutional validity of petitioner's
conviction. [Footnote 5] The
Court makes no reference to what is relevant -- the
Page 400 U. S. 561
facts of petitioner's compelled testimony and his present
conviction.
Finally, the Court asserts that
"our determination upon the fundamental constitutional question
underlying this case would be in no sense necessary to its
resolution in this instance."
This is simply not so. If the Court resolves this case, it must
make a "determination upon the fundamental constitutional
question." Indeed, the per curiam has already conceded that. The
issue is why resolution of this case, and hence decision on the
constitutional question, is being withheld. In my judgment, the
Court has yet to articulate a reason for not deciding this
case.
In sum, the Court attempts, none too successfully in my
judgment, to create a smokescreen by focusing on questions of state
law. Petitioner's conviction, without more, squarely raises the
federal constitutional question on a concrete, factual record which
provides an excellent basis for constitutional adjudication. Under
these circumstances, there exists no basis upon which the Court can
justify dismissal of the writ of certiorari as improvidently
granted. I therefore turn to the merits.
III
Only one sovereignty, New York State, is involved. Thus, the
case raises the basic question of the constitutional restrictions
upon the power of a state government to prosecute an individual for
matters related to incriminating testimony which that State has
compelled the individual to give. Unlike, for example,
Murphy
v. Waterfront Comm'n, 378 U. S. 52
(1964), there is no problem here of limitations imposed on other
jurisdictions by New York's act of compelling petitioner to testify
against himself. And
"where there is only one government involved, be it state or
federal, not only is the danger of prosecution more imminent and
indeed the likely purpose of the investigation to facilitate
prosecution
Page 400 U. S. 562
and conviction, but that authority has the choice of exchanging
immunity for the needed testimony."
Id. at
378 U. S. 98
(WHITE, J., concurring).
I believe that the Fifth Amendment's privilege against
self-incrimination requires that any jurisdiction that compels a
man to incriminate himself grant him absolute immunity under its
laws from prosecution for any transaction revealed in that
testimony. [
Footnote 6] Such
transactional immunity, in my view, steers a well conceived middle
path between, on the one hand, a position that no immunity statute
can supplant the constitutional privilege and, on the other, a
position that affords the individual the altogether too narrow
protection of use immunity as applied to the very government that
has compelled him to incriminate himself. While a position broader
than transactional immunity finds some support in the language and
history of the Fifth Amendment, [
Footnote 7] the
Page 400 U. S. 563
requirements of today's society and broad governmental economic
regulation combined with the existence of the adequate alternative
of transactional immunity convince me that the Constitution does
not require so sweeping an interpretation as completely to
invalidate the immunity technique. Mere use immunity, which
protects the individual only against the actual use of his
compelled testimony and its fruits, satisfies neither the language
of the Constitution itself nor the values, purposes, and policies
that the privilege was historically designed to serve, and that it
must serve in a free country. Finally, this Court's decisions in
the course of the past century have consistently read the
Constitution as requiring no more, but no less, than transactional
immunity.
The Fifth Amendment's guarantee against self-incrimination --
"No person . . . shall be compelled in any criminal case to be a
witness against himself" -- has occupied a central place in our
jurisprudence, since before the Nation's birth:
"By 1776, the principle of the
nemo tenetur maxim was
simply taken for granted, and so deeply accepted that its
constitutional expression had the mechanical quality of a
ritualistic gesture in favor of a self-evident truth needing no
explanation."
L. Levy, Origins of the Fifth Amendment 430 (1968). Not only the
Federal Constitution, but every State, guarantees the individual
the privilege against self-incrimination, all States save two by
provision in the state constitution. [
Footnote 8] This Court has repeatedly emphasized its role
as guardian against even inadvertent or gradual erosion of the
guarantee. "This provision must have a
Page 400 U. S. 564
broad construction in favor of the right which it was intended
to secure."
Counselman v. Hitchcock, 142 U.S. at
142 U. S. 562.
The Court's holding that the Fifth Amendment privilege "is also
protected by the Fourteenth Amendment against abridgment by the
States,"
Malloy v. Hogan, 378 U. S.
1,
378 U. S. 6
(1964), is modern affirmation that the privilege is the "essential
mainstay" of the American accusatorial system of criminal
prosecution,
id. at
378 U. S. 7;
Malloy held that the Fourteenth Amendment applied the
privilege's requirements to the States as fully as to the Federal
Government.
The words of the Fifth Amendment do not, in terms, suggest that
government may compel men to incriminate themselves provided it
promises that it will not prosecute them for the crimes revealed.
The clause does not prohibit a
prosecution or
conviction; it prohibits the application
vel non
of compulsion to an individual to force testimony that incriminates
him, regardless of whether he is actually prosecuted. Historically,
one of the major evils sought to be allayed by the development of
the privilege was the use of torture to extract a confession,
[
Footnote 9] not the subsequent
use of the confession in a criminal trial. We continue to recognize
this distinction; for example, we permit the use of voluntary
confessions in criminal prosecutions. [
Footnote 10] Thus, we object not so much to convicting
a man on the basis of evidence from his own mouth, but rather to
the practice of compelling him to incriminate himself, regardless
of a subsequent prosecution.
Implicitly, of course, "in any criminal case" suggests a
limitation upon the reach of the privilege, although
Page 400 U. S. 565
ever since Mr. Chief Justice Marshall's opinion in the
Aaron
Burr case, the reach has been the
possibility of a
criminal charge, not whether one is, in fact, brought.
United
States v. Burr, 25 F. Cas. 38 (No. 14692e) (C.C.D. Va. 1807).
But if there is no possibility of a criminal case, then the
privilege would not apply. And that is precisely the basis on which
this Court has consistently upheld grants of immunity from
Brown v. Walker, 161 U. S. 591
(1896), to
Ullmann v. United States, 350 U.
S. 422 (1956):
"[I]f [a man's] testimony operate[s] as a complete pardon for
the offence to which it relates -- statute absolutely securing to
him such immunity from prosecution would satisfy the demands of the
clause in question."
Brown v. Walker, 161 U.S. at
161 U. S. 595.
Or, as the Court put it more succinctly 10 years later,
"if the criminality has already been taken away, the Amendment
ceases to apply."
Hale v. Henkel, 201 U. S. 43,
201 U. S. 67
(1906).
It is clear, of course, that mere "use" immunity does not
"operate as a complete pardon for the offence," nor doe it take the
criminality away from the testimony in question. If the individual
is only promised that the Government will not actually use his
compelled testimony or its fruits to convict him, he is still being
compelled to testify against himself "in [a] criminal case," in
clear contradiction of the constitutional command. He is still
being forced by the State to admit criminal conduct for which he
may be punished, albeit not on the basis of his compelled
testimony.
The policies and purposes which the privilege serves are
promoted by the transactional immunity standard. Mr. Justice
Frankfurter's oft-quoted remark that
"[t]he privilege against self-incrimination is a specific
provision of which it is peculiarly true that 'a page of history
is
Page 400 U. S. 566
worth a volume of logic,'"
Ullmann v. United States, 350 U.S. at
350 U. S. 438,
reflects the fact that the privilege safeguards many interrelated
fundamental values: "It will not do, therefore, to assign one
isolated policy to the privilege,"
Murphy v. Waterfront
Comm'n, 378 U.S. at
378 U. S. 56 n.
5, and attempt to argue from "the" policy so identified. In
Murphy, the Court identified some of the complex of values
that the privilege serves:
"[O]ur unwillingness to subject those suspected of crime to the
cruel trilemma of self-accusation, perjury or contempt; our
preference for an accusatorial rather than an inquisitorial system
of criminal justice; our fear that self-incriminating statements
will be elicited by inhumane treatment and abuses; our sense of
fair play which dictates"
"a fair state-individual balance by requiring the government to
leave the individual alone until good cause is shown for disturbing
him and by requiring the government in its contest with the
individual to shoulder the entire load;"
"our respect for the inviolability of the human personality and
of the right of each individual 'to a private enclave where he may
lead a private life;' our distrust of self-deprecatory statements;
and our realization that the privilege, while sometimes 'a shelter
to the guilty,' is often 'a protection to the innocent.'"
Id. at
378 U. S. 55
(citations omitted).
I quote this summary of some of the values and purposes served
by the privilege at such length because I think it is noteworthy
that many, if not most, of them are severely infringed by
compelling an individual to testify under any circumstances. I do
not seek to reopen the debate of
Brown v. Walker, supra,
and
Ullmann v. United States, supra, whether the Fifth
Amendment is compatible with immunity statutes of any nature, not
only because
Brown and
Ullmann foreclose that
inquiry, but also because the competing considerations identified
in those
Page 400 U. S. 567
opinions and my Brother WHITE's concurring opinion in
Murphy, 378 U.S. at
378 U. S. 93-96,
as well as the language of the Fifth Amendment, convince me that
that result is not required. It is, however, important to
appreciate the breadth and significance of the values that the
Fifth Amendment was designed to protect.
In light of those values, it seems clear to me that mere "use"
immunity is insufficient when the government involved is the one
that has compelled the incriminating testimony. It has been argued
that, if the State is prohibited from using testimony or
information obtained by compulsion, then both the government and
the individual are in the same position as if the witness had not
testified. As the
Murphy statement of values shows, from
the standpoint of the individual (which is also the standpoint of
the Fifth Amendment), that is simply not true. The individual has
been compelled to incriminate himself, and if he is granted only
use immunity, compelled to do so in matters for which he may
ultimately be prosecuted. Even from the standpoint of the State, it
clearly is not in the same position that it would have been had it
not compelled the witness to testify. It has obviously obtained
information, which may help it to pursue its general investigation,
as well as its specific investigation of others. Whether that
information will enable the investigation to generate enough steam
and continue long enough to produce "independent" evidence
incriminating the individual originally compelled to testify is an
open question. In short, use immunity literally misses half the
point of the privilege, for it permits the compulsion without
removing the criminality.
See Hale v. Henkel, supra.
Finally, the uncertainties of the factfinding process argue
strongly against "use" immunity and in favor of transactional
immunity. This Court has recognized that "[t]here is always in
litigation a margin of error, representing
Page 400 U. S. 568
error in factfinding, which both parties must take into
account."
Speiser v. Randall, 357 U.
S. 513,
357 U. S. 525
(1958). In dealing with a single jurisdiction, we ought to
recognize the enormous difficulty in attempting to ascertain
whether a subsequent prosecution of an individual, who has
previously been compelled to incriminate himself in regard to the
offense in question, derives from the compelled testimony or from
an "independent source." For one thing, all the relevant evidence
will obviously be in the hands of the government -- the government
whose investigation included compelling the individual involved to
incriminate himself. Moreover, this argument does not depend upon
assumptions of misconduct or collusion among government officers.
It assumes only the normal margin of human fallibility. Men working
in the same office or department exchange information without
recording carefully how they obtained certain information; it is
often impossible to remember in retrospect how or when or from whom
information was obtained. By hypothesis, the situation involves one
jurisdiction with presumably adequate exchange of information among
its various law enforcement officers. Moreover, the possibility of
subtle inferences drawn from action or nonaction on the part of
fellow law enforcement personnel would be difficult if not
impossible to prove or disprove. This danger, substantial when a
single jurisdiction both compels incriminating testimony and brings
a later prosecution, may fade when the jurisdiction bringing the
prosecution differs from the jurisdiction that compelled the
testimony. Concern over informal and undetected exchange of
information is also correspondingly less when two different
jurisdictions are involved.
Transactional immunity raises none of these problems. It
provides the individual with an assurance that he is not testifying
about matters for which he may later be
Page 400 U. S. 569
prosecuted. No question arises of tracing the use or nonuse of
information gleaned from the witness' compelled testimony. The sole
question presented to a court is whether the subsequent prosecution
is related to the substance of the compelled testimony. Both
witness and government know precisely where they stand. Respect for
law is furthered when the individual knows his position and is not
left suspicious that a later prosecution was actually the fruit of
his compelled testimony.
The transactional immunity standard was first articulated by
this Court in
Counselman v. Hitchcock, supra, in 1892; it
has consistently been reaffirmed and reiterated in both holding and
dicta ever since, and has never been seriously questioned in a case
involving the actions of a single jurisdiction. In
Counselman, the Court held that the immunity granted by an
1868 federal statute was inadequate to supplant the right of the
witness to rely on his constitutional privilege:
"In view of the constitutional provision, a statutory enactment,
to be valid, must afford
absolute immunity against future
prosecution for the offence to which the question
relates."
142 U.S. at
142 U. S. 586
(emphasis added). Four years later, the Court in
Brown v.
Walker, supra, upheld a contempt conviction for a witness'
refusal to answer a question after he had been granted immunity
under a new 1893 federal statute enacted after the
Counselman decision. The 1893 statute provided,
"[N]o person shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter or thing,
concerning which he may testify."
Act of February 11, 1893, 27 Stat. 443, 49 U.S.C. § 46. Finding
that, under this statute, a witness' testimony "operate[s] as a . .
. pardon" for criminal conduct to which it relates, the Court held
that the statute "fully accomplished" the Fifth Amendment
objective. 161 U.S. at
Page 400 U. S. 570
161 U. S. 610.
Only by relying on full transactional immunity did the Court
sustain the immunity statute before it over the dissent of four
Justices who thought the statute's protection still not coextensive
with the constitutional privilege. 161 U.S. at
161 U. S.
610-638 (dissenting opinions of Shiras and Field,
JJ.).
In
Hale v. Henkel, supra, the Court sustained a
contempt citation for refusing to answer questions after
transactional immunity had been granted under a federal immunity
statute, resting on the proposition that, "if the criminality has
already been taken away, the Amendment ceases to apply." 201 U.S.
at
201 U. S. 67. In
1924, Mr. Justice Brandeis, speaking for a unanimous Court, held
the privilege was available to a bankrupt subpoenaed before a
special commissioner for examination
"because the present statute fails to afford complete immunity
from prosecution. If Congress should hereafter conclude that a full
disclosure of the bankrupt estate by the witnesses is of greater
importance than the possibility of punishing them for some crime in
the past, it can, as in other cases, confer the power of
unrestricted examination by providing complete immunity.
Compare Brown v. Walker, 161 U. S. 591;
Glickstein v.
United States, 222 U. S. 139,
222 U. S.
142;
Ensign v. Pennsylvania, 227 U. S.
592."
McCarthy v. Arndstein, 266 U. S.
34,
266 U. S. 42.
See also United States v. Monia, 317 U.
S. 424,
317 U. S. 428
(1943) (
Counselman "indicated clearly that nothing short
of absolute immunity would justify compelling the witness to
testify if he claimed his privilege");
Smith v. United
States, 337 U. S. 137,
337 U. S. 147
(1949) (transactional immunity "met the
absolute' test of the
constitutional provision against self-incrimination").
Page 400 U. S.
571
By 1956, Mr. Justice Frankfurter, writing for the Court, could
assert that the 1893 statute, enacted shortly after
Counselman and adopting the transactional immunity
standard, had "become part of our constitutional fabric."
Ullmann v. United States, 350 U.
S. 422,
350 U. S. 438.
Again, the Court in
Ullmann relied on the transactional
immunity standard to reaffirm the holding of
Brown v.
Walker against the dissent of two Justices who repeated the
arguments of the
Brown dissenters that even transactional
immunity did not satisfy the constitutional privilege.
Ullmann
v. United States, supra, at
350 U. S.
440-455.
Ullmann's assertion that transactional immunity has
become part of our "constitutional fabric" finds support in the
action of Congress in the 78 years since
Counselman first
announced the standard. Congress has written more than 40 immunity
provisions into various federal statutes during that time, and,
with one minor and unexplained exception in 1898 and two exceptions
in 1970, [
Footnote 11] every
provision has provided for transactional immunity. [
Footnote 12] Moreover, as reflected by an
appendix in petitioner's brief, the majority of state immunity
statutes provide for transactional immunity, even though the States
were not
Page 400 U. S. 572
subject to the full effect of the Fifth Amendment until 1964.
Malloy v. Hogan, supra.
The wisdom of this consistent view of the protection required by
the Fifth Amendment is illustrated and supported by the facts of
this case. At the time the petitioner was summoned from his prison
cell to testify before the grand jury, the prosecutor knew that the
petitioner had offered to bribe Patrolman Sewell. He knew that the
basis of the bribery was the assault on Graham, and that petitioner
had sought to influence Sewell to dispose of the tire irons
involved in the assault. Nonetheless, the District Attorney made
his decision: he elected to call petitioner before the grand jury
which was investigating various conspiracies associated with that
assault. Before the grand jury, the prosecutor obtained immunity
for petitioner and, under the threat of contempt, compelled the
petitioner to testify about the assault and about various matters
connected with it. The petitioner complied, relinquishing his
constitutionally guaranteed right not to incriminate himself, in
the face of a considered decision by a state official to utilize
official state processes to compel him to testify.
This Court emphasized in
Brown v. Walker, supra, one of
the major evils the Amendment was designed to guard against:
"[I]f an accused person be asked to explain his apparent
connection with a crime under investigation, the ease with which
the questions put to him may assume an inquisitorial character, the
temptation to press the witness unduly, to browbeat him if he be
timid or reluctant, to push him into a corner, and to entrap him
into fatal contradictions, which is so painfully evident in many of
the earlier state trials . . . made the system so odious as to give
rise to a demand for its total abolition. . . . So deeply
Page 400 U. S. 573
did the iniquities of the ancient system impress themselves upon
the minds of the American colonists that the States, with one
accord, made a denial of the right to question an accused person a
part of their fundamental law."
161 U.S. at
161 U. S.
596-597. So too in this case: an accused was put in the
same position, with the same attendant temptations and pressures
upon the prosecutor. That the questioning occurred in the secrecy
of the grand jury does not affect the protection afforded the
individual by the Constitution. Only if both prosecutor and witness
are clearly on notice that questioning about an incident will
relieve the witness of all criminal liability substantially related
to that subject can we guarantee that the inquisitorial character
of the proceeding will be removed, and still allow the prosecutor
to seek out facts relevant to the crimes of others.
IV
Under the transactional immunity standard, I do not believe that
petitioner's conviction can stand. Mr. Justice Holmes, in
Heike
v. United States, 227 U. S. 131
(1913), in interpreting a federal immunity statute so as to render
it "coterminous with what otherwise would have been the privilege
of the person concerned," 227 U.S. at
227 U. S. 142,
held that "[w]hen the statute speaks of testimony concerning a
matter, it means concerning it in a substantial way."
Id.
at
227 U. S. 144.
I agree that immunity attaches only to matters substantially
related to the compelled testimony.
Petitioner testified that he had committed the assault on Graham
with tire irons. He testified that the tire irons in the possession
of the police were the tire irons that he had used. He testified
that he was caught immediately after the assault by the police,
taken to the station house, booked on the assault charge, and
released on bail the next day. His testimony carried
Page 400 U. S. 574
right up to the time Patrolman Sewell later testified that
petitioner offered him a bribe; it concerned the events and
underlying circumstances that gave rise to the bribe. It
established the motive for the bribe and established all the facts
underlying the substance of the bribe. These are not facts that had
"no connection" with the subsequent prosecution,
see Heike v.
United States, 227 U.S. at
227 U. S.
143-144; to the contrary, they were not merely
substantially related to the bribery charge, but actually quite
pertinent to that prosecution. Consequently, petitioner's motion to
dismiss the indictment should have been granted.
I would reverse the judgment below and remand with instructions
to dismiss the indictment.
[
Footnote 1]
Petitioner has argued that he had a right to counsel in the
circumstances of this case. In view of my conclusion that
petitioner's conviction is invalid under the Fifth and Fourteenth
Amendments, I have no occasion to pass upon his Sixth Amendment
argument.
[
Footnote 2]
If the Court has doubts that petitioner's conviction would still
be affirmed in light of the supervening change in the
interpretation of state law, the appropriate course would be to
remand to the state court for reconsideration, as my Brother BLACK
suggests.
Bell v. Maryland, 378 U.
S. 226,
378 U. S. 228
(1964). The Court's failure to do so presumably rests on the New
York court's footnote in its later opinion stating that, in its
view, the transactional immunity granted by the New York statute
would not affect petitioner's conviction. But if petitioner's
conviction is indeed regarded as final under New York law, then the
constitutional issue is posed without regard to New York law for
the reasons stated in the text.
[
Footnote 3]
E.g., Gardner v. Broderick, 392 U.
S. 273 (1968);
Uniformed Sanitation Men Assn. v.
Commissioner of Sanitation, 392 U. S. 280
(1968);
Malloy v. Hogan, 378 U. S. 1 (1964);
Murphy v. Waterfront Comm'n, 378 U. S.
52 (1964);
Ullmann v. United States,
350 U. S. 422
(1956);
Hoffman v. United States, 341 U.
S. 479 (1951);
United States v. Murdock,
284 U. S. 141
(1931);
McCarthy v. Arndstein, 266 U. S.
34 (1924);
Hale v. Henkel, 201 U. S.
43 (1906);
Ballmann v. Fain, 200 U.
S. 186 (1906);
Jack v. Kansas, 199 U.
S. 372 (1905);
Brown v. Walker, 161 U.
S. 591 (1896);
Counselman v. Hitchcock,
142 U. S. 547
(1892).
But see, e.g., Adams v. Maryland, 347 U.
S. 179 (1954);
Smith v. United States,
337 U. S. 137
(1949);
Feldman v. United States, 322 U.
S. 487 (1944);
Heike v. United States,
227 U. S. 131
(1913).
[
Footnote 4]
Not only do the parties disagree on the extent of the federal
constitutional protection, but both parties also see a decision on
that sharply disputed question as necessary to a decision of this
case:
Counsel for respondent:
"[I]f transactional immunity is required by the federal
Constitution, then the decision of the Court of Appeals that this
was or wasn't a thing as specified in the New York State statute,
is a matter of federal importance, and it is to be decided by a
uniform standard."
"On the other hand, if the only thing that the Constitution
requires is a use plus fruits immunity, then when New York decided
whether this crime, this bribery was one of the things testified to
in the grand jury, becomes strictly a matter of the state
interpretation of its own statute, and there is no federal
constitutional question involved."
"
And so it is necessary to decide whether transactional
immunity is required by the federal Constitution. Now, the
petitioner relies a great deal on the case of
Counselman vs.
Hitchcock. Now, it is our position that
Counselman vs.
Hitchcock is not the law any more, that it has been overruled,
or if it hasn't, it should be. . . ."
Tr. of Oral Arg. 24 (emphasis added).
Counsel for petitioner:
"This is the transaction[al] immunity rule that we assert is
required under the Fifth Amendment. . . ."
"It is our position that this is the rule that first was
enunciated in the first case in this Court to deal with the
question of immunity and the abrogation of the Fifth Amendment
privilege in
Counselman vs. Hitchcock. It has been
constantly reiterated in numerous decisions of this Court, and we
believe it is a very sound rule."
"
* * * *"
"So we feel that there was no question but that there was a
substantial relationship [between the compelled testimony and
petitioner's conviction] and that under the transactional immunity
test, which we contend is a federal constitutional test, and as it
has been explained by this Court in
Heike and applied in
other cases, the bribery indictment must be found to have been
covered by the transaction[al] immunity to which this petitioner
was entitled."
Id. at 11, 15.
[
Footnote 5]
See supra, at
400 U. S.
555-558.
[
Footnote 6]
"Transactional" immunity presupposes "use" immunity.
"[C]ompelled testimony and its fruits cannot be used in any manner
. . . in connection with a criminal prosecution against [the
witness]."
Murphy v. Waterfront Comm'n, 378 U. S.
52,
378 U. S. 79
(1964).
[
Footnote 7]
Historians have noted that the clause itself is absolute and may
not originally have been viewed as allowing the government to
compel men to incriminate themselves if it only promised not to
prosecute them for the crimes revealed:
"The clause, by its terms, also protected against more than just
'self-incrimination,' a phrase that had never been used in the long
history of its origins and development. The 'right against
self-incrimination' is a short-hand gloss of modern origin that
implies a restriction not in the constitutional clause. The right
not to be a witness against oneself imports a principle of wider
reach, applicable, at least in criminal cases, to the
self-production of any adverse evidence, including evidence that
made one the herald of his own infamy, thereby publicly disgracing
him."
"
* * * *"
"The state courts of the framers' generation followed the
extension of the right to cover self-infamy as well as
self-incrimination, although the self-infamy rule eventually fell
into disuse."
L. Levy, Origin of the Fifth Amendment 427, 429 (1968).
[
Footnote 8]
See 8 J. Wigmore, Evidence § 2252 and n. 3 (McNaughton
rev.1961).
[
Footnote 9]
See Brown v. Walker, 161 U. S. 591,
161 U. S.
596-597 (1896); Levy,
n 7,
supra, at 426 and
passim.
[
Footnote 10]
Talmudic law prohibits the admission in evidence of any
self-incriminatory testimony or Statement, even if voluntarily
given. Levy,
n 7,
supra, at 433-441.
[
Footnote 11]
11 U.S.C. § 25(a)(10). This immunity provision was first enacted
in the Bankruptcy Act of July 1, 1898, § 7(a)(9), 30 Stat. 548, six
years after
Counselman. Professor Wigmore has speculated
that the drafters of this provision were hostile to the Bankruptcy
Act, and purposely drafted an imperfect immunity. 8 J. Wigmore,
Evidence § 2283, p. 528 (3d ed.1940).
McCarthy v.
Arndstein, 266 U. S. 34
(1924), established that the immunity granted by the section is
inadequate to remove the constitutional privilege. Title 18 U.S.C.
§ 6002 (1970 ed.) codifies the use immunity provision enacted in
the Organized Crime Control Act of 1970, 84 Stat. 927; 21 U.S.C. §
884 (1970 ed.) codifies the use immunity provision enacted in §
514(a) of the Comprehensive Drug Abuse Prevention and Control Act
of 1970, 84 Stat. 1278.
[
Footnote 12]
8 J. Wigmore, Evidence § 2281, p. 495 n. 11 (McNaughton
rev.1961), and 1970 Supp., p. 51.