New York statutes require public contracts to provide that, if a
contractor refuses to waive immunity or to testify concerning his
state contracts, his existing contracts may be canceled and he
shall be disqualified from further transactions with the State for
five years, and further require disqualification from contracting
with public authorities upon a person's failure to waive immunity
or answer questions respecting his state transactions. Appellees,
New York-licensed architects, when summoned to testify before a
grand jury investigating various criminal charges, refused to sign
waivers of immunity, whereupon various contracting authorities were
notified of appellees' conduct and had their attention called to
the applicable disqualification statutes. Appellees thereafter
brought this action challenging the statutes as violative of their
constitutional privilege against compelled self-incrimination. A
three-judge District Court declared the statutes unconstitutional
under the Fourteenth and Fifth Amendments.
Held:
1. The Fifth Amendment privilege against self-incrimination is
not inapplicable simply because the issue arises in the context of
official inquiries into the job performance of a public contractor.
The ordinary rule is that the privilege is available to witnesses
called before a grand jury as these appellees were, and the State's
legitimate interest in maintaining the integrity of its civil
service and of its transactions with independent contractors, like
other state concerns, cannot override the requirements of the Fifth
Amendment. Pp.
414 U. S.
77-79.
2. The State could not compel testimony that had not been
immunized, and the waiver sought by the State, under threat of loss
of contracts, would have been no less compelled than a direct
request for the testimony without resort to the waiver device,
Garrity v. New Jersey, 385 U. S. 493;
Gardner v. Broderick, 392 U. S. 273;
Sanitation Men v. Sanitation Comm'r, 392 U.
S. 280, and there is no constitutional distinction in
terms of compulsion between the threat of job loss in those cases
and the threat of contract loss to a contractor. Pp.
414 U. S.
79-84.
Page 414 U. S. 71
3. Under a proper accommodation between the interest of the
State and the Fifth Amendment, the State can require employees or
contractors to respond to inquiries, but only if it offers them
immunity sufficient to supplant their Fifth Amendment privilege.
Kastigar v. United States, 406 U.
S. 441. Pp.
414 U. S.
84-85.
342 F.
Supp. 544, affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined,
and in which BRENNAN, J., joined by a separate qualifying opinion,
in which DOUGLAS and MARSHALL, JJ., joined,
post, p.
414 U. S.
85.
MR. JUSTICE WHITE delivered the opinion of the Court.
New York General Municipal Law § 103-a and 103-b and New York
Public Authorities Law §§ 2601 and 2602 require public contracts to
provide that, if a contractor refuses to waive immunity or to
answer questions when called to testify concerning his contracts
with the State or any of its subdivisions, his existing contracts
may be canceled, and he shall be disqualified from further
transactions with the State for five years. [
Footnote 1] In addition to
Page 414 U. S. 72
specifying these contract terms, the statutes require
disqualification from contracting with public authorities upon
failure of any person to waive immunity or to
Page 414 U. S. 73
answer questions with respect to his transactions with the State
or its subdivisions. The issue in this case is whether these
sections are consistent with the Fourteenth
Page 414 U. S. 74
Amendment insofar as it makes applicable to the States the Fifth
Amendment privilege against compelled self-incrimination.
Page 414 U. S. 75
I
Appellees are two architects licensed by the State of New York.
They were summoned to testify before a grand jury investigating
various charges of conspiracy,
Page 414 U. S. 76
bribery, and larceny. They were asked, but refused, to sign
waivers of immunity, the effect of which would have been to waive
their right not to be compelled in a criminal case to be a witness
against themselves. They were then excused and the District
Attorney, as directed by law, notified various contracting
authorities of appellees' conduct and called attention to the
applicable disqualification statutes. Appellees thereupon brought
this action alleging that their existing contracts and future
contracting privileges were threatened and asserted that the
pertinent statutory provisions were violative of the constitutional
privilege against compelled self-incrimination. A three-judge
District Court was convened and declared the four statutory
provisions at issue unconstitutional under the Fourteenth and Fifth
Amendments,
342 F.
Supp. 544 (WDNY 1972). We noted probable jurisdiction, 410 U.S.
924 (1973). The State appealed pursuant to 28 U.S.C. § 1253. We
affirm the judgment of the District Court.
Page 414 U. S. 77
II
The Fifth Amendment provides that no, person "shall be compelled
in any criminal case to be a witness against himself." The
Amendment not only protects the individual against being
involuntarily called as a witness against himself in a criminal
prosecution, but also privileges him not to answer official
questions put to him in any other proceeding, civil or criminal,
formal or informal, where the answers might incriminate him in
future criminal proceedings.
McCarthy v. Arndstein,
266 U. S. 34,
266 U. S. 40
(1924), squarely held that
"[t]he privilege is not ordinarily dependent upon the nature of
the proceeding in which the testimony is sought or is to be used.
It applies alike to civil and criminal proceedings, wherever the
answer might tend to subject to criminal responsibility him who
gives it. The privilege protects a mere witness as fully as it does
one who is also a party defendant."
In this respect,
McCarthy v. Arndstein reflected the
settled view in this Court. The object of the Amendment
"was to insure that a person should not be compelled, when
acting as a witness in any investigation, to give testimony which
might tend to show that he himself had committed a crime."
Counselman v. Hitchcock, 142 U.
S. 547,
142 U. S. 562
(1892).
See also Bram v. United States, 168 U.
S. 532,
168 U. S.
542-543 (1897);
Brown v. Walker, 161 U.
S. 591 (1896);
Boyd v. United States,
116 U. S. 616,
116 U. S. 634,
116 U. S.
637-638 (1886);
United States v. Saline
Bank, 1 Pet. 100 (1828). This is the rule that is
now applicable to the States.
Malloy v. Hogan,
378 U. S. 1
(1964).
"It must be considered irrelevant that the petitioner was a
witness in a statutory inquiry, and not a defendant in a criminal
prosecution, for it has long been settled that the privilege
protects witnesses in similar federal inquiries.
Page 414 U. S. 78
Id. at
378 U. S. 11. In any of these
contexts, therefore, a witness protected by the privilege may
rightfully refuse to answer unless and until he is protected at
least against the use of his compelled answers and evidence derived
therefrom in any subsequent criminal case in which he is a
defendant.
Kastigar v. United States, 406 U. S.
441 (1972). Absent such protection, if he is
nevertheless compelled to answer, his answers are inadmissible
against him in a later criminal prosecution.
Bram v. United
States, supra; Boyd v. United States, supra."
Against this background, there is no room for urging that the
Fifth Amendment privilege is inapplicable simply because the issue
arises, as it does here, in the context of official inquiries into
the job performance of a public contractor. Surely, the ordinary
rule is that the privilege is available to witnesses called before
grand juries as these appellee architects were.
Hale v.
Henkel, 201 U. S. 43,
201 U. S. 66
(1906).
It is true that the State has a strong, legitimate interest in
maintaining the integrity of its civil service and of its
transactions with independent contractors furnishing a wide range
of goods and services, and New York would have it that this
interest is sufficiently strong to override the privilege. The
suggestion is that the State should be able to interrogate
employees and contractors about their job performance without
regard to the Fifth Amendment, to discharge those who refuse to
answer or to waive the privilege by waiving the immunity to which
they would otherwise be entitled, and to use any incriminating
answers obtained in subsequent criminal prosecutions. But claims of
overriding interests are not unusual in Fifth Amendment litigation,
and they have not fared well.
In
McCarthy v. Arndstein, supra, the United States
insisted that, because of the strong public interest in marshaling
and distributing assets of bankrupts, the
Page 414 U. S. 79
Fifth Amendment should not protect a bankrupt during the
official examinations mandated by the Bankruptcy Act. That position
did not prevail. The bankrupt's testimony could be had, but only if
he were afforded sufficient immunity to supplant the privilege. And
long before
McCarthy v. Arndstein, the Court recognized
that, without the compelled testimony of knowledgeable and perhaps
implicated witnesses, the enforcement of the transportation laws
"would become impossible," but nevertheless proceeded on a basis
that witnesses must be granted adequate immunity if their evidence
was to be compelled.
Brown v. Walker, 161 U.S. at
161 U. S. 610.
Similarly, the enforcement of the antitrust laws against private
corporations was at stake in
Hale v. Henkel, supra, but
immunity was essential to command the testimony of individual
witnesses. Also, it would be difficult to overestimate the
importance of the interest of the States in the enforcement of
their ordinary criminal laws; but the price for incriminating
answers from third-party witnesses is sufficient immunity to
satisfy the imperatives of the Fifth Amendment privilege against
compelled self-incrimination. Finally, in almost the very context
here involved, this Court has only recently held that employees of
the State do not forfeit their constitutional privilege and that
they may be compelled to respond to questions about the performance
of their duties, but only if their answers cannot be used against
them in subsequent criminal prosecutions.
Garrity v. New
Jersey, 385 U. S. 493
(1967);
Gardner v. Broderick, 392 U.
S. 273 (1968);
Sanitation Men v. Sanitation
Comm'r, 392 U. S. 280
(1968).
III
In
Garrity v. New Jersey, certain police officers were
summoned to an inquiry being conducted by the Attorney General
concerning the fixing of traffic tickets.
Page 414 U. S. 80
They were asked questions following warnings that, if they did
not answer, they would be removed from office, and that anything
they said might be used.against them in any criminal proceeding. No
immunity of any kind was offered or available under state law. The
questions were answered, and the answers later used, over their
objections, in their prosecutions for conspiracy. The Court held
that
"the protection of the individual under the Fourteenth Amendment
against coerced statements prohibits use in subsequent criminal
proceedings of statements obtained under threat of removal from
office, and that it extends to all, whether they are policemen or
other members of our body politic."
385 U.S. at
385 U. S. 500.
The Court also held that, in the context of threats of removal from
office, the act of responding to interrogation was not voluntary,
and was not an effective waiver of the privilege against
self-incrimination, the Court conceding, however, that there might
be other situations "where one who is anxious to make a clean
breast of the whole affair volunteers the information."
Id. at
385 U. S.
499.
The issue in
Gardner v. Broderick, supra, was whether
the State might discharge a police officer who, after he was
summoned before a grand jury to testify about the performance of
his official duties and was advised of his right against compulsory
self-incrimination, then refused to waive that right as requested
by the State. Conceding that appellant could be discharged for
refusing to answer questions about the performance of his official
duties, if not required to waive immunity, the Court held that the
officer could not be terminated, as he was, for refusing to waive
his constitutional privilege. Although, under
Garrity, any
waiver executed may have been invalid and any answers elicited
inadmissible in evidence, the State did not purport to recognize as
much, and instead
Page 414 U. S. 81
attempted to coerce a waiver on the penalty of loss of
employment. The "testimony was demanded before the grand jury in
part so that it might be used to prosecute him, and not solely for
the purpose of securing an accounting of his performance of his
public trust." 392 U.S. at
392 U. S. 279. Hence, the State's statutory provision
requiring his dismissal for his refusal to waive immunity could not
stand.
The companion case,
Sanitation Men v. Sanitation Comm'r,
supra, was to the same effect. Here again, public employees
were officially interrogated and advised that refusal to answer and
sign waivers of immunity would lead to dismissal. Here again, the
Court held that the State presented the employees with "a choice
between surrendering their constitutional rights or their jobs,"
392 U.S. at
392 U. S. 284,
although clearly they would "subject themselves to dismissal if
they refuse to account for their performance of their public trust,
after proper proceedings, which do not involve an attempt to coerce
them to relinquish their constitutional rights."
Id. at
392 U. S.
285.
These cases, and their predecessors, ultimately rest on a
reconciliation of the well recognized policies behind the privilege
of self-incrimination,
Murphy v. Waterfront Comm'n,
378 U. S. 52,
378 U. S. 55
(1964), and the need of the State, as well as the Federal
Government, to obtain information "to assure the effective
functioning of government,"
id. at
378 U. S. 93
(WHITE, J., concurring). Immunity is required if there is to be
"rational accommodation between the imperatives of the privilege
and the legitimate demands of government to compel citizens to
testify."
Kastigar v. United States, 406 U.S. at
406 U. S. 446.
It is in this sense that immunity
Page 414 U. S. 82
statutes have "become part of our constitutional fabric."
Ullmann v. United States, 350 U.
S. 422,
350 U. S. 438
(1956). [
Footnote 2]
We agree with the District Court that
Garrity, Gardner,
and
Sanitation Men control the issue now before us. The
State sought to interrogate appellees about their transactions with
the State, and to require them to furnish possibly incriminating
testimony by demanding that they waive their immunity and by
disqualifying them as public contractors when they refused. It
seems to us that the State intended to accomplish what
Garrity specifically prohibited -- to compel testimony
that had not been immunized. The waiver sought by the State, under
threat of loss of contracts, would have been no less compelled than
a direct request for the testimony without resort to the waiver
device. A waiver secured under threat of substantial economic
sanction cannot be
Page 414 U. S. 83
termed voluntary. As already noted,
Garrity
specifically rejected the claim of an effective waiver when the
policemen in that case, in the face of possible discharge,
proceeded to answer the questions put to them. 385 U.S. at
385 U. S. 498.
The same holding is implicit in both
Gardner and
Sanitation Men.
The State nevertheless asserts that whatever may be true of
state employees, a different rule is applicable to public
contractors such as architects. Because independent contractors may
not depend entirely on transactions with the State for their
livelihood, it is suggested that disqualification from contracting
with official agencies for a period of five years is neither
compulsion within the meaning of the Fifth Amendment nor a
forbidden penalty for refusing to answer questions put to them
about their job performance. But we agree with the District Court
that "the plaintiffs' disqualification from public contracting for
five years as a penalty for asserting a constitutional privilege is
violative of their Fifth Amendment rights."
342 F.
Supp. at 549. We fail to see a difference of constitutional
magnitude between the threat of job loss to an employee of the
State, and a threat of loss of contracts to a contractor. [
Footnote 3]
If the argument is that the cost to a contractor is small in
comparison to the cost to an employee of losing his job, the
premise must be that it is harder for a state employee to find
employment in the private sector, than it is for an architect. An
architect lives off his contracting fees as surely as a state
employee lives off his salary, and fees and salaries may be equally
hard to come by in the private sector after sanctions have been
taken by
Page 414 U. S. 84
the State. In some sense, the plight of the architect may be
worse, for, under the New York statutes, it may be that any firm
that employs him thereafter will also be subject to contract
cancellation and disqualification. [
Footnote 4] A significant infringement of constitutional
rights cannot be justified by the speculative ability of those
affected to cover the damage.
IV
We should make clear, however, what we have said before.
Although due regard for the Fifth Amendment forbids the State to
compel incriminating answers from its employees and contractors
that may be used against them in criminal proceedings, the
Constitution permits that very testimony to be compelled if neither
it nor its fruits are available for such use.
Kastigar v.
United States, supra. Furthermore, the accommodation between
the interest of the State and the Fifth Amendment requires that the
State have means at its disposal to secure testimony if immunity is
supplied and testimony is still refused. This is recognized by the
power of the courts to compel testimony, after a grant of immunity,
by use of civil contempt and coerced imprisonment.
Shillitani
v. United States, 384 U. S. 364
(1966). Also, given adequate immunity, the State may plainly insist
that employees either answer questions under oath about the
performance of their job or suffer the loss of employment. By like
token, the State may insist that the architects involved in this
case either respond to relevant inquiries about the performance of
their contracts or suffer cancellation of current relationships and
disqualification from contracting with public agencies for an
appropriate time in the future. But the State may not insist that
appellees
Page 414 U. S. 85
waive their Fifth Amendment privilege against self-incrimination
and consent to the use of the fruits of the interrogation in any
later proceedings brought against them. Rather, the State must
recognize what our cases hold: that answers elicited upon the
threat of the loss of employment are compelled and inadmissible in
evidence. Hence, if answers are to be required in such
circumstances States must offer to the witness whatever immunity is
required to supplant the privilege, and may not insist that the
employee or contractor waive such immunity.
Affirmed.
[
Footnote 1]
N.Y.Gen.Munic.Law §§ 103-a and 103-b (Supp. 1973-1974)
provide:
Section 103-a. Ground for cancellation of contract by municipal
corporations and fire districts:
"A clause shall be inserted in all specifications or contracts
made or awarded by a municipal corporation or any public
department, agency or official thereof on or after the first day of
July, nineteen hundred fifty-nine or by a fire district or any
agency or official thereof on or after the first day of September,
nineteen hundred sixty, for work or services performed or to be
performed, or goods sold or to be sold, to provide that upon the
refusal of a person, when called before a grand jury, head of a
state department, temporary state commission or other state agency,
. . . head of a city department, or other city agency, which is
empowered to compel the attendance of witnesses and examine them
under oath, to testify in an investigation concerning any
transaction or contract had with the state, any political
subdivision thereof, a public authority or with any public
department, agency or official of the state or of any political
subdivision thereof or of a public authority, to sign a waiver of
immunity against subsequent criminal prosecution or to answer any
relevant question concerning such transaction or contract,"
"(a) such person, and any firm, partnership or corporation of
which he is a member, partner, director or officer shall be
disqualified from thereafter selling to or submitting bids to or
receiving awards from or entering into any contracts with any
municipal corporation, or fire district, or any public department,
agency or official thereof, for goods, work or services, for a
period of five years after such refusal, and to provide also
that"
"(b) any and all contracts made with any municipal corporation
or any public department, agency or official thereof on or after
the first day of July, nineteen hundred fifty-nine or with any fire
district or any agency or official thereof on or after the first
day of September, nineteen hundred sixty, by such person, and by
any firm, partnership, or corporation of which he is a member,
partner, director or officer may be cancelled or terminated by the
municipal corporation or fire district without incurring any
penalty or damages on account of such cancellation or termination,
but any monies owing by the municipal corporation or fire district
for goods delivered or work done prior to the cancellation or
termination shall be paid."
"The provisions of this section as in force and effect prior to
the first day of September, nineteen hundred sixty, shall apply to
specifications or contracts made or awarded by a municipal
corporation on or after the first day of July, nineteen hundred
fifty-nine, but prior to the first day of September, nineteen
hundred sixty."
Section 103-b. Disqualification to contract with municipal
corporations and fire districts:
"Any person, who, when called before a grand jury, head of a
state department, temporary state commission or other state agency,
. . . head of a city department or other city agency, which is
empowered to compel the attendance of witnesses and examine them
under oath, to testify in an investigation concerning any
transaction or contract had with the state, any political
subdivision thereof, a public authority, or with a public
department, agency or official of the state or of any political
subdivision thereof or of a public authority, refuses to sign a
waiver of immunity against subsequent criminal prosecution or to
answer any relevant question concerning such transaction or
contract, and any firm, partnership or corporation of which he is a
member, partner, director or officer shall be disqualified from
thereafter selling to or submitting bids to or receiving awards
from or entering into any contracts with any municipal corporation
or fire district, or with any public department, agency or official
thereof, for goods, work or services, for a period of five years
after such refusal or until a disqualification shall be removed
pursuant to the provisions of section one hundred three-c of this
article."
"It shall be the duty of the officer conducting the
investigation before the grand jury, the head of a state
department, the chairman of the temporary state commission or other
state agency, . . . the head of a city department or other city
agency before which the refusal occurs to send notice of such
refusal, together with the names of any firm, partnership, or
corporation of which the person so refusing is known to be a
member, partner, officer or director, to the commissioner of
transportation of the state of New York and the appropriate
departments, agencies and officials of the state, political
subdivisions thereof or public authorities with whom the person so
refusing and any firm, partnership or corporation of which he is a
member, partner, director or officer, is known to have a contract.
However, when such refusal occurs before a body other than a grand
jury, notice of refusal shall not be sent for a period of ten days
after such refusal occurs. Prior to the expiration of this ten-day
period, any person, firm, partnership or corporation which has
become liable to the cancellation or termination of a contract or
disqualification to contract on account of such refusal may
commence a special proceeding at a special term of the supreme
court, held within the judicial district in which the refusal
occurred, for an order determining whether the questions in
response to which the refusal occurred were relevant and material
to the inquiry. Upon the commencement of such proceeding, the
sending of such notice of refusal to answer shall be subject to
order of the court in which the proceeding was brought in a manner
and on such terms as the court may deem just. If a proceeding is
not brought within ten days, notice of refusal shall thereupon be
sent as provided herein."
N.Y.Pub. Auth. Law §§ 2601 and 2602 (Supp. 1973-1974)
provide:
Section 2601. Ground for cancellation of contract by public
authority:
"A clause shall be inserted in all specifications or contracts
hereafter made or awarded by any public authority or by any
official of any public authority created by the state or any
political subdivision, for work or services performed or to be
performed or goods sold or to be sold, to provide that upon the
refusal by a person, when called before a grand jury, head of a
state department, temporary state commission or other state agency,
. . . head of a city department, or other city agency, which is
empowered to compel the attendance of witnesses and examine them
under oath, to testify in an investigation concerning any
transaction or contract had with the state, any political
subdivision thereof, a public authority or with any. public
department, agency or official of the state or of any political
subdivision thereof or of a public authority, to sign a waiver of
immunity against subsequent criminal prosecution or to answer any
relevant question concerning such transaction or contract,"
"(a) such person, and any firm, partnership or corporation of
which he is a member, partner, director or officer shall be
disqualified from thereafter selling to or submitting bids to or
receiving awards from or entering into any contracts with any
public authority or official thereof, for goods, work or services,
for a period of five years after such refusal, and to provide also
that"
"(b) any and all contracts made with any public authority or
official thereof, since the effective date of this law, by such
person and by any firm, partnership or corporation of which he is a
member, partner, director or officer may be cancelled or terminated
by the public authority without incurring any penalty or damages on
account of such cancellation or termination, but any monies owing
by the public authority for goods delivered or work done prior to
the cancellation or termination shall be paid."
Section 2602. Disqualification to contract with public
authority:
"Any person, who, when called before a grand jury, head of a
state department, temporary state commission or other state agency,
. . . head of a city department, or other city agency, which is
empowered to compel the attendance of witnesses and examine them
under oath, to testify in an investigation concerning any
transaction or contract had with the state, any political
subdivision thereof, a public authority or with a public
department, agency or official of the state or of any political
subdivision thereof or of a public authority, refuses to sign a
waiver of immunity against subsequent criminal prosecution or to
answer any relevant questions concerning such transaction or
contract, and any firm, partnership or corporation, of which he is
a member, partner, director, or officer shall be disqualified from
thereafter selling to or submitting bids to or receiving awards
from or entering into any contracts with any public authority or
any official of any public authority created by the state or any
political subdivision, for goods, work or services, for a period of
five years after such refusal or until a disqualification shall be
removed pursuant to the provisions of section twenty-six hundred
three of this title."
"It shall be the duty of the officer conducting the
investigation before the grand jury, the head of a state
department, the chairman of the temporary state commission or other
state agency, . . . the head of a city department or other city
agency before which the refusal occurs to send notice of such
refusal, together with the names of any firm, partnership or
corporation of which the person so refusing is known to be a
member, partner, officer or director, to the commissioner of
transportation of the state of New York, or the commissioner of
general services as the case may be, and the appropriate
departments, agencies and officials of the state, political
subdivisions thereof or public authorities with whom the persons
[
sic] so refusing and any firm, partnership or corporation
of which he is a member, partner, director or officer, is known to
have a contract. However, when such refusal occurs before a body
other than a grand jury, notice of refusal shall not be sent for a
period of ten days after such refusal occurs. Prior to the
expiration of this ten-day period, any person, firm, partnership or
corporation which has become liable to the cancellation or
termination of a contract or disqualification to contract on
account of such refusal may commence a special proceeding at a
special term of the supreme court, held within the judicial
district in which the refusal occurred, for an order determining
whether the questions in response to which the refusal occurred
were relevant and material to the inquiry. Upon the commencement of
such proceeding, the sending of such notice of refusal to answer
shall be subject to order of the court in which the proceeding was
brought in a manner and on such terms as the court may deem just.
If a proceeding is not brought within ten days, notice of refusal
shall thereupon be sent as provided herein."
[
Footnote 2]
In
Orloff v. Willoughby, 345 U. S.
83 (1953), a doctor inducted into the Army was denied a
commission as an officer after refusing to divulge whether he was a
Communist, as required by a loyalty certificate prescribed for
commissioned officers. Instead he asserted his "Federal
constitutional privilege" when called upon to answer the question.
In holding that the Government was justified in refusing the
commission because of the failure to answer, the Court had no
occasion to consider whether Orloff would have been exposed to
criminal prosecution if he had stated that he was a member of the
Communist Party. The case differs significantly from the one before
us, since the State here asks the architects to affirmatively
expose themselves to criminal prosecution by waiving their
privilege against self-incrimination, or from
Garrity,
where the threat of criminal prosecution was apparent both from the
nature of the proceeding, and the absence of applicable state
immunity statutes.
Kimm v. Rosenberg, 363 U. S. 405
(1960), is also inapposite. The Court there held that an alien
whose deportation had been ordered was ineligible for a
discretionary order permitting his voluntary departure, because he
had failed to establish that he was not affiliated with the
Communist Party. Petitioner's imminent departure from the country,
whether it was voluntary or compelled, obviously made the threat of
criminal prosecution on the basis of his answer remote.
[
Footnote 3]
As
Garrity succinctly put it:
"The option to lose their means of livelihood or to pay the
penalty of self-incrimination is the antithesis of free choice to
speak out or to remain silent."
385 U.S.
493,
385 U. S. 497
(1967).
[
Footnote 4]
The contract disqualifications apply not only to the person who
refuses to waive immunity, but also to "any firm, partnership or
corporation of which he is a member, partner, director or officer.
. . ."
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL join.
I join the Court's opinion in all respects but one. It is my
view that immunity which permits testimony to be compelled "if
neither it nor its fruits are available for . . . use" in criminal
proceedings does not satisfy the privilege against
self-incrimination.
"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."
Piccirillo v. New York, 400 U.
S. 548,
400 U. S. 562
(1971) (BRENNAN, J., dissenting.)