Respondent municipal official testified before a state grand
jury under immunity granted pursuant to a New Jersey statute
preventing a public employee's grand jury testimony or evidence
derived therefrom from being used against him in a subsequent
criminal proceeding. Thereafter, respondent was charged with
misconduct in office and extortion, and, at his trial, the judge
ruled that respondent's grand jury testimony could be used to
impeach his credibility if he testified. As a result of this
ruling, respondent did not testify, and he was ultimately
convicted. The New Jersey appellate court held that the use of the
immunized grand jury testimony to impeach respondent would have
violated the Constitution, and, because respondent's decision not
to testify was based on the trial court's erroneous ruling to the
contrary, reversed the conviction and remanded for a new trial.
Under the Fifth Amendment privilege against
compulsory self-incrimination made binding on the States by the
Fourteenth Amendment, respondent's testimony before the grand jury
under a grant of immunity could not constitutionally be used
against him in the later criminal trial. Pp. 440 U. S.
(a) That respondent did not take the witness stand does not
render the constitutional question abstract and hypothetical. It
appears from the record that the trial judge did rule on the merits
of such question, and the appellate court necessarily concluded
that such question had been properly presented, because it ruled in
respondent's favor on the merits. Moreover, there is nothing in
federal law to prohibit New Jersey from following such a procedure,
nor, so long as Art. III's "case or controversy" requirement is
met, to foreclose this Court's consideration of the constitutional
issue now that the New Jersey courts have decided it. Pp.
440 U. S.
(b) Testimony given in response to a grant of legislative
immunity is the essence of coerced testimony and involves the
constitutional privilege against compulsory self-incrimination in
its most pristine form. Thus, any balancing of interests so as to
take into account the interest in preventing perjury is not only
unnecessary, but impermissible. Harris v. New York,
401 U. S. 222
Oregon v. Hass, 420 U. S. 714
distinguished. Pp. 440 U. S.
151 N.J.Super. 200,
Page 440 U. S. 451
STEWART, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, POWELL, REHNQUIST, and STEVENS, JJ.,
joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL,
J., joined, post,
p. 440 U. S. 460
POWELL, J., filed a concurring opinion, in which REHNQUIST, J.,
p. 440 U. S. 462
BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J.,
p. 440 U. S.
MR. JUSTICE STEWART delivered the opinion of the Court.
This case involves the scope of the privilege against compulsory
self-incrimination, grounded in the Fifth Amendment and made
binding against the States by the Fourteenth. The precise question
is whether, despite this constitutional privilege, a prosecutor may
use a person's legislatively immunized grand jury testimony to
impeach his credibility as a testifying defendant in a criminal
In the early 1970's, Joseph Portash was Mayor of Manchester
Township, Executive Director of the Pinelands Environmental
Council, and a member of both the Ocean County Board of Freeholders
and the Manchester Municipal Utilities Authority in New Jersey. In
November, 1974, after a lengthy investigation, a state grand jury
subpoenaed Portash. He expressed an intention to claim his
privilege against compulsory self-incrimination. The prosecutors
and Portash's lawyers then agreed that, if Portash testified before
the grand jury, neither his statements nor any evidence derived
from them could, under New Jersey law, be used in subsequent
criminal proceedings (except in prosecutions for perjury or
Page 440 U. S. 452
false swearing). [Footnote
] After Portash's testimony, the parties tried to come to an
agreement to avoid a criminal prosecution against Portash, but no
bargain was reached. In April, 1975, Portash was indicted for
misconduct in office and extortion by a public official. [Footnote 2
Before trial, defense counsel sought to obtain a ruling from the
trial judge that no use of the immunized grand jury testimony would
be permitted. The judge refused to rule that the prosecution could
not use this testimony for purposes of impeachment. After the
completion of the State's case, defense counsel renewed his request
for a ruling by the trial judge as to the use of the grand jury
testimony. There followed an extended colloquy, and the judge
finally ruled that, if Portash testified and gave an answer on
direct or cross-examination which was materially inconsistent with
his grand jury testimony, the prosecutor could use that testimony
in his cross-examination of Portash. Defense counsel then stated
that, because of this ruling, he would advise his client not to
take the stand. Portash did not testify, and the jury ultimately
found him guilty on one of the two counts.
Page 440 U. S. 453
The New Jersey Appellate Division reversed the conviction. 151
376 A.2d 950
(1977). That court held that the Constitution
requires that the immunity granted by the New Jersey statute must
be at least coextensive with the privilege afforded by the Fifth
and Fourteenth Amendments. To confer such protection, the court
reasoned, the grant of immunity must "leave defendant and the State
in the position each would have occupied had defendant's claim of
privilege [before the grand jury] been honored." Id.
205, 376 A. d, at 953. Use of the immunized grand jury testimony to
impeach a defendant at his trial, it held, did not meet this test.
Because Portash's decision not to testify was based upon the trial
court's erroneous ruling to the contrary, the Appellate Division
reversed the conviction and remanded the case for a new trial.
] The New Jersey
Supreme Court denied the State's petition for certification of an
appeal. 75 N.J. 597, 384 A.2d 827 (1978). We granted certiorari.
436 U.S. 955.
New Jersey presents two questions. First, it argues that Portash
cannot properly invoke the privilege against compulsory
incrimination because he did not take the witness stand, and, as a
result, his immunized grand jury testimony was never used against
him. Second, it urges that the Fifth and
Page 440 U. S. 454
Fourteenth Amendments do not prohibit the use of immunized grand
jury testimony to impeach materially inconsistent statements made
The State contends that the issue presented by Portash is
abstract and hypothetical because he did not, in fact, become a
witness. Portash could have taken the stand, testified, objected to
the prosecution's use of the immunized testimony to impeach him,
and appealed any subsequent conviction. Absent that, the State
would have us hold that the constitutional question was not and is
not presented. This argument must be rejected. First, it is clear
that, although the trial judge was concerned about making a ruling
before specific questions were asked, he did rule on the merits of
the constitutional question:
"THE COURT: Well, this is what the Court was concerned with and
still is, and I thought the Court had straightened it out
previously, the witness taking the stand and testifying as to
something and then have counsel saying didn't you say before the
grand jury such and such."
"MR. WILBERT [defense counsel]: That's the problem that we have.
We don't know whether he's going to be able to use that or not,
your Honor, especially if he didn't touch that area in his
examination -- "
"THE COURT: Mr. Wilbert, suppose your client takes the stand and
he testifies that I worked for Donald Safran and suppose he
testified before the grand jury I never worked for Donald
"MR. WILBERT: Inconsistency, and under your Honor's ruling that
can be used in this case."
"THE COURT: No doubt about it.
"MR. WILBERT: Your Honor, I would submit it could be used over
my objection, of course. "
Page 440 U. S. 455
"THE COURT: You have a standing objection with respect to the
use at all of the grand jury testimony."
(Emphasis added.) App. 223a. Second, the New Jersey appellate
court necessarily concluded that the federal constitutional
question had been properly presented, because it ruled in Portash's
favor on the merits. [Footnote
] See Raley v. Ohio, 360 U.
, 360 U. S.
-437; cf. Jenkins v. Georgia, 418 U.
, 418 U. S. 157
Coleman v. Alabama, 377 U. S. 129
377 U. S. 133
Whitney v. California, 274 U. S. 357
274 U. S. 360
361; Manhattan Life Ins. Co. v. Cohen, 234 U.
, 234 U. S.
Moreover, there is nothing in federal law to prohibit New Jersey
from following such a procedure, or, so long as the "case or
controversy" requirement of Art. III is met, to foreclose our
consideration of the substantive constitutional issue now that the
New Jersey courts have decided it. This is made clear by a case
decided by this Court in 1972, Brooks v. Tennessee,
406 U. S. 605
There the Court held unconstitutional a Tennessee statutory
requirement that a defendant in a criminal case had to be his own
first witness if he was to take the stand at all. The Court held
that such a requirement unconstitutionally penalized a defendant's
right to remain silent, since a defendant could remain silent
immediately after the close of the State's case only at the cost of
never testifying in his own defense. Although Brooks had not
testified, the Tennessee court considered the constitutional
validity of the state statute, and so did this Court. Because the
Page 440 U. S. 456
a penalty on the right to remain silent, the Court found that
his constitutional rights had been infringed even though he had
never taken the stand. Id.
at 406 U. S. 611
the Court held that the defendant's Fifth
and Fourteenth Amendment rights had been violated because, in order
to assert his Fifth Amendment right to remain silent after the
prosecution's case in chief had been presented, the defendant would
have had to pay a penalty. He could never testify. Here, as in
federal law does not insist that New Jersey was
wrong in not requiring Portash to take the witness stand in order
to raise his constitutional claim. [Footnote 5
In both Great Britain and in what later became the United
States, immunity statutes, like the privilege against compulsory
self-incrimination, predate the adoption of the Constitution.
Kastigar v. United States, 406 U.
, 406 U. S. 445
n. 13, 406 U. S. 446
n. 14. This Court first considered a constitutional challenge to an
immunity statute in Counselman v. Hitchcock, 142 U.
. The witness in that case had refused to testify
before a federal grand jury in spite of a grant of immunity under
the relevant federal statute. The Court overturned his contempt
conviction. It construed the statute to permit the use of evidence
derived from his immunized testimony. The witness was held to have
validly asserted his privilege because
"legislation cannot abridge a constitutional privilege, and . .
. it cannot replace or supply one, at least unless it is so
Page 440 U. S. 457
as to have the same extent in scope and effect."
at 142 U. S. 585
See also Brown v. United States, 359 U. S.
; Ullman v. United States, 350 U.
; Brown v. Walker, 161 U.
. After the holding in Malloy v. Hogan,
378 U. S. 1
the Fifth Amendment privilege against compulsory self-incrimination
is also contained in the Fourteenth Amendment, this rule is
necessarily applicable to state immunity statutes as well. Cf.
Murphy v. Waterfront Comm'n, 378 U. S. 52
Language in Counselman
and its progeny was read by some
to require that the witness must be immune from prosecution for the
transaction his testimony concerned. Indeed, the federal statutes
subsequently upheld by the Court granted such transactional
immunity. Brown v. United States, supra; Ullman v. United
States, supra; Heike v. United States, 227 U.
; Brown v. Walker, supra.
] The adoption of Pub.L. 91452 in
1970 marked a change in federal immunity legislation from the
provision of transactional immunity to the provision of what is
known as "use" immunity. 18 U.S. C §§ 6001, 6002. This immunity,
similar to that provided by the New Jersey statute in this case,
protects the witness from the use of his compelled testimony and
any information derived from it. In Kastigar v. United States,
the Court upheld that statute against a challenge that
mere use immunity is not coextensive with the Fifth Amendment's
"The privilege has never been construed to mean that one who
invokes it cannot subsequently be prosecuted. Its
Page 440 U. S. 458
sole concern is to afford protection against being "forced to
give testimony leading to the infliction of penalties affixed
to . . . criminal acts.'" Immunity from the use of compelled
testimony, as well as evidence derived directly and indirectly
therefrom, affords this protection. It prohibits the prosecutorial
authorities from using the compelled testimony in any respect, and
it therefore insures that the testimony cannot lead to the
infliction of criminal penalties on the witness."
406 U.S. at 406 U. S. 453
(Emphasis in original; footnote omitted.)
Against this broad statement of the necessary constitutional
scope of testimonial immunity, the State asks us to weigh
Harris v. New York, 401 U. S. 222
Oregon v. Hass, 420 U. S. 714
] Those cases
involved the use of statements, concededly taken in violation of
Miranda v. Arizona, 384 U. S. 436
impeach a defendant's testimony at trial. In both cases, the Court
weighed the incremental deterrence of police illegality against the
strong policy against countenancing perjury. In the balance, use of
the incriminating statements for impeachment purposes prevailed.
The State asks that we apply the same reasoning to this case. It
points out that the interest in preventing perjury is just as
strongly involved, and that the statements made to the grand jury
are at least as reliable as those made by the defendants in
But the State has overlooked a crucial distinction between those
cases and this one. In Harris
expressly noted that the defendant made "no claim that the
statements made to the police were coerced or involuntary,"
Harris v. New York, supra
at 401 U. S. 224
Oregon v. Hass, supra
Page 440 U. S. 459
420 U. S.
-723. That recognition was central to the decisions
in those cases.
The Fifth and the Fourteenth Amendments provide that no person
"shall be compelled in any criminal case to be a witness against
himself." As we reaffirmed last Term, a defendant's compelled
statements, as opposed to statements taken in violation of
may not be put to any testimonial use whatever
against him in a criminal trial. "But any
use against a defendant of his involuntary
statement is a
denial of due process of law." (Emphasis in original.) Mincey
v. Arizona, 437 U. S. 385
Testimony given in response to a grant of legislative immunity
is the essence of coerced testimony. In such cases, there is no
question whether physical or psychological pressures overrode the
defendant's will; the witness is told to talk or face the
government's coercive sanctions, notably, a conviction for
contempt. The information given in response to a grant of immunity
may well be more reliable than information beaten from a helpless
defendant, but it is no less compelled. The Fifth and Fourteenth
Amendments provide a privilege against compelled
self-incrimination, not merely against unreliable
self-incrimination. Balancing of interests was thought to be
necessary in Harris
when the attempt to
deter unlawful police conduct collided with the need to prevent
perjury. Here, by contrast, we deal with the constitutional
privilege against compulsory self-incrimination in its most
pristine form. Balancing, therefore, is not simply unnecessary. It
The Superior Court of New Jersey, Appellate Division, correctly
ruled that a person's testimony before a grand jury
Page 440 U. S. 460
under a grant of immunity cannot constitutionally be used to
impeach him when he is a defendant in a later criminal trial.
the judgment is affirmed.
It is so ordered.
At that time a New Jersey statute provided as follows:
"If any public employee testifies before any court, grand jury
or the State Commission of Investigation, such testimony and the
evidence derived therefrom shall not be used against such public
employee in a subsequent criminal proceeding under the laws of this
State; provided that no such public employee shall be exempt from
prosecution or punishment for perjury committed while so
New Jersey Public Employees Immunity Statute, N.J.Stat.Ann. §
2A:81-17.2a2 (West 1976).
Portash has not contended that the indictment was based on
information disclosed by or "derived" from his immunized testimony.
Before trial, he did move for dismissal of the indictment on two
grounds. First, he argued that the course of dealings between
himself and the prosecution established an agreement that he would
not be prosecuted so long as he cooperated with the State. Second,
he contended that he had impermissibly been forced to incriminate
himself by providing certain employment records to the grand jury.
The trial court rejected both arguments; neither is urged here.
We read the state court opinion as resting its judgment
unambiguously and exclusively on the Federal Constitution. The
"The immunity device, however, will only be deemed a sufficient
answer to a claim of privilege if the scope of immunity afforded is
commensurate in all respects with the privilege against
self-incrimination which it replaces. United States v
Calandra, 414 U. S. 338
, 414 U. S.
. . . (1974); Kastigar v. United States,
406 U. S.
, 406 U. S. 459
. . .
151 N.J.Super., at 205, 376 A.2d at 953.
were, of course,
federal constitutional decisions. The court discussed several other
federal cases in the course of its opinion, and nowhere indicated
any reliance on principles of state constitutional or common
Lefkowitz v. Newsome, 420 U. S. 283
another case where provisions of state law allowed federal review
that may not otherwise have been available. There, New York law
allowed a defendant to appeal defeat of a motion to suppress even
though he later pleaded guilty. The Court held that, because the
State recognized such a procedure, a state prisoner who had pleaded
guilty could assert his Fourth and Fourteenth Amendment claim in a
federal habeas corpus proceeding, even though federal habeas corpus
relief would not generally have been available to one who had
A similar situation existed in Wardius v. Oregon,
412 U. S. 470
Court held in that case that state notice-of-alibi requirements
could be enforced only if the State provided reciprocal discovery
rights for the defendant. The defendant in that case had not given
a notice of alibi. The State argued that he could not assert his
constitutional claim, because he should have given his notice of
alibi and then argued that the State had to grant him reciprocal
discovery. The Court rejected that argument, and held that he need
not give notice to raise his constitutional claim.
case dealt with the problem of dual
sovereignty. The issue was whether a State could grant
constitutionally sufficient immunity if another jurisdiction could
use the immunized testimony in a prosecution. The Court proceeded
on the premise that a State is required to provide at least use
immunity, and held that such immunity would have to be honored by
the Federal Government. See Kastigar v. United States,
406 U. S. 441
406 U. S.
See Shapiro v. United States, 335 U. S.
, 335 U. S. 6
for a list of the federal statutes that provided transactional
The Court in both the Harris
relied on Walder v. United States, 347 U. S.
, a case in which the Court held that the Fourth
Amendment's exclusionary rule does not prevent the use of
unconstitutionally seized evidence to impeach a defendant's
We express no view as to whether possibly truthful immunized
testimony may be used in a subsequent false declarations
prosecution premised on an inconsistency between that testimony and
later, nonimmunized, testimony. That question will be presented in
Dunn v. United States,
No. 77949, cert. granted,
439 U.S. 1045.
There is discussion in the briefs of the parties regarding the
admissibility of statements made by Portash during pre-indictment
negotiations with the state prosecutors. We do not understand the
opinion of the state appellate court to have dealt with this issue,
and nothing said in this opinion bears on it.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
I join the Court's opinion affirming the judgment in this case,
despite my reservations that the decision of the Superior Court of
New Jersey, Appellate Division, 151 N.J.Super. 200,
376 A.2d 950
(1977), certification denied,
597, 384 A.2d 827 (1978), may well rest on independent and adequate
The privilege against self-incrimination is not set out in the
New Jersey Constitution. Its origins are instead to be found in the
common law, see State v. Fary,
19 N.J. 431, 434-435,
, 501-502 (1955), and in statutes. See
N.J.Stat.Ann. § 2A:84A-19 (West 1976). Although New Jersey courts
have looked to constructions of the Fifth Amendment of the Federal
Constitution as a source of illumination for the interpretation of
the state privilege, see In re Pillo,
11 N.J. 8, 15-17,
, 179-180 (1952), they have also held that the
interpretation of that privilege is
"a matter of state law and policy, as to which [New Jersey] may
impose standards more strict than required by the federal
Constitution, which standards will control regardless of the final
outcome of the question in the federal sphere."
State v. Deatore,
70 N.J. 100, 112, 358 A.2d
, 170 (1976). Cf. State v. Johnson,
68 N.J. 349,
353, 346 A.2d
, 67-68 (1975).
In this context the Appellate Division's decision appears
Page 440 U. S. 461
to rest on the independent and adequate state ground of
N.J.Stat.Ann. § 2A:81-17.2a2 (West 1976). The Division's opinion
begins by reciting the statute in toto,
labeling it as
"[t]he statutory authority for the State's grant of immunity to
defendant." 151 N.J.Super. at 204, 376 A.2d at 952. The opinion
"[t]he question is whether the State should be required to honor
its promise, expressed m its statute
. . . not to use the
testimony compelled in any subsequent criminal proceeding against
the defendant. . . ."
(Emphasis supplied.) Id.
at 207, 376 A.2d at 954. Under
these circumstances, the Appellate Division's references to
decisions interpreting federal constitutional law seem to be mere
analogies, illuminating the Division's ultimate construction of
N.J.Stat.Ann. § 2A:81-17.2a2. [Footnote
] Logically, interpretations of the Fifth Amendment can at
most serve as guidance to New Jersey's interpretation of its own
statute. [Footnote 2/2
] It is also
of no little significance that, although the State rests its case
heavily on Harris v. New York, 401 U.
Brief for Petitioner 339,
the Supreme Court of New Jersey has recently held that the state
privilege against self-incrimination may well be "stricter" than
that required by Harris. See State v. Deatore,
at 116, 358 A.2d at 172.
But the Court reads the New Jersey court's opinion as resting on
the Federal Constitution. That reading would not have been possible
had the New Jersey court's opinion in this case been as explicit as
However, since I fully agree
Page 440 U. S. 462
with the Court's disposition of the federal constitutional
question, I shall not further press the point but join the Court's
The immunity statute at issue in this case, N.J.Stat.Ann. §
2A:8117.2a2 (West 1976), is "self-executing," State v.
134 N.J.Super. 432, 440,
341 A.2d 673
, 677 (1975), and therefore, as one New Jersey
court put it, a "defendant's Fifth Amendment protection is derived
from the statute." Id.
at 439, 341 A.2d at 677.
There is no suggestion, of course, that New Jersey's
interpretation of its statute violates the guarantees of the Fifth
Amendment of the Federal Constitution.
"We reach that conclusion as a matter of state law and policy .
. . regardless of the final outcome of the question in the federal
sphere." 70 N.J., at 112, 358 A.2d at 170.
MR. JUSTICE POWELL, with whom MR. JUSTICE REHNQUIST joins,
I concur in the Court's opinion, and add these comments.
As stated by the Court, New Jersey makes two arguments in
support of its request for reversal. First, it insists that,
because Portash did not take the witness stand, his immunized
testimony was not used against him and he therefore cannot complain
of a violation of his Fifth Amendment privilege. The preferred
method for raising claims such as Portash's would be for the
defendant to take the stand and appeal a subsequent conviction, if
-- following a claim of immunity -- the prosecutor were allowed to
use immunized testimony for impeachment. Only in this way may the
claim be presented to a reviewing court in a concrete factual
context. Moreover, requiring that the claim be presented only by
those who have taken the stand will prevent defendants with no real
intention of testifying from creating artificial constitutional
challenges to their convictions. [Footnote 3/1
This is a state case, however, in which the New Jersey Appellate
Division apparently accepted the procedure followed by the trial
court and treated the constitutional question as having been
properly presented. I agree with the Court that this procedural
question was within the authority of the state court to decide.
Page 440 U. S. 463
The State also argues, quite apart from the procedural context
in which the question arises, that immunized grand jury testimony
may be used to impeach a criminal defendant's testimony at trial.
The Court correctly rejects this argument, ruling that the coercing
of Portash to testify before the grand jury constituted a classic
case of "compelling" a defendant to be a witness against himself.
See Kastigar v. United States, 406 U.
, 406 U. S. 453
The Court has referred to two quite different interests in
determining whether the Fifth Amendment permits a defendant's
statements to be used against him at trial. In Harris v. New
York, 401 U. S. 222
(1971), the Court emphasized the trustworthiness of a suspect's
statements made to police, noting that there was no indication that
the statements were "coerced or involuntary." Similarly, here there
is no reason to question the veracity of the respondent's grand
jury testimony. The Court today recognizes, however, that the
privilege against self-incrimination protects against more than
just the use of false or inaccurate statements against a criminal
defendant. In addition, the Fifth Amendment, by virtue of its
incorporation through the Fourteenth Amendment, prohibits a State
from using compulsion to extract truthful information from a
defendant, when that information is to be used later in obtaining
the individual's conviction.
Criminal defendants, as an aid to determining trial strategy, no
doubt would prefer to be told in advance of trial whether prior
testimony may be used to impeach if they take the stand. But there
is no constitutional requirement that defendants be given such a
ruling at a time when only a hypothetical question can be
Accordingly, the Court need not, and, as I read its opinion,
does not decide whet.her it would regard the constitutional issue
as having been properly presented if this case had arisen in
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins,
The Court in this case reaches out to decide an important
constitutional question even though that question is presented in
the context of an abstract dispute over a hypothetical ruling of
the trial court. For me, the facts present too remote and
speculative an injury to federally protected rights to support the
exercise of jurisdiction by this Court. Indeed,
Page 440 U. S. 464
examination of the record reveals for me that the Court decides
today a question different from the one the trial court considered.
This demonstrates how far afield we range when we cut loose from
the requirement that only concrete disputes may be decided by this
Court. Because I believe the Court is without authority to engage
in this type of abstract adjudication of constitutional rights in a
factual vacuum, I dissent.
Prior to trial, and again at the close of the State's evidence,
respondent Portash attempted to obtain an advance evidentiary
ruling from the trial court. Though the precise nature of the
ruling respondent sought is a matter of dispute, it related
generally to whether and to what extent the State would be
permitted to use, during cross-examination of respondent and in the
rebuttal phase of its own case, information supplied by respondent
under the statutory grant of immunity. When respondent failed to
obtain a ruling he considered satisfactory, he refrained from
testifying in his own behalf. Accordingly, he did not take the
stand at the trial. He was not cross-examined. He gave no answer
determined by the trial court to be materially inconsistent with
any prior immunized statement on a relevant issue. The State did
not seek to impeach him through use of immunized testimony. And the
trial court did not rule that the State could do so in response to
an inconsistent answer, or that the State could otherwise make use
of immunized testimony at trial. In short, because of his failure
to take the stand, respondent was never incriminated through the
use of the testimony he previously had supplied under the immunity
Even so, the Court takes jurisdiction over this dispute and
decides the merits of respondent's claim that it would have
constituted a violation of his right under the Fifth and Fourteenth
Amendments to be free from compelled self-incrimination had the
State used immunized testimony to impeach him, assuming, of course,
that he would have taken the stand,
Page 440 U. S. 465
that he would have given materially inconsistent answers to
relevant questions, and that the State would have chosen to impeach
him with prior immunized testimony. The Court justifies this
assertion of jurisdiction, over the State's objection that the
dispute is only hypothetical, by announcing that the New Jersey
courts decided the issue and held it to be properly presented on
appeal. Citing cases such as Raley v. Ohio, 360 U.
(1959), and Jenkins v. Georgia,
418 U. S. 153
at 440 U. S. 455
the Court holds that New Jersey's determination that the federal
issue properly has been presented is sufficient to allow this Court
to decide the issue, notwithstanding respondent's failure to take
the stand. "[T]here is nothing in federal law to prohibit New
Jersey from following such a procedure," the Court holds,
"or, so long as the 'case or controversy' requirement of Art.
III is met, to foreclose our consideration of the substantive
constitutional issue now that the New Jersey courts have decided
But the State's objection, as I understand it, goes not to
whether the federal issue properly was presented in the state
courts, but to whether, in light of respondent's failure to
testify, the alleged claim is too remote and speculative to support
jurisdiction here. As such, resolution of the State's objection
turns not on the determination that the New Jersey courts
recognized the federal issue as properly presented, but on the
determination that there is indeed a federal issue in the case. And
this latter determination depends upon whether, as a matter of
federal law, there is a sufficiently concrete controversy over the
scope of a federal right to support the exercise of jurisdiction by
The Court tacitly recognizes this, I take it, by conceding,
at 440 U. S.
-456, that the "case or controversy" requirement of
Art. III must be met and by its citation of Brooks v.
Tennessee, 406 U. S. 605
(1972). For in Brooks,
the dissenters argued that, since
the defendant had not taken the stand, his right
Page 440 U. S. 466
to be free from compelled self-incrimination had not been
infringed, and therefore the defendant had not presented the Court
with any federal issue "bearing on the privilege against
at 406 U. S. 617
The Court answered that argument by saying that the Tennessee
statute in issue imposed a burden on the right to remain silent by
penalizing a defendant who asserted that right at the start of his
case, and "that penalty constitute[d] the infringement of the
at 406 U. S. 611
n. 6. Thus, in Brooks,
the Court found that there was a
federal issue presented even though the defendant had not taken the
stand, since it was the exercise of the right not to testify that
the State burdened.
As in Brooks,
the Court here must believe that there
was some infringement of a federal right sufficient to establish a
concrete controversy capable of supporting its jurisdiction. But,
unlike in Brooks,
the Court takes care to omit any mention
of what federal right was infringed by the hypothetical "ruling" of
the trial court. It simply says that New Jersey recognized the
issue as having been presented, intimates that the case is within
Art. III's case or controversy requirement, and proceeds to the
What federal right it is that the "ruling" of the trial court
infringed is not easy to ascertain. It would not appear that the
right to remain silent, at issue in Brooks,
since respondent asserted that right without suffering any penalty
for doing so. Nor did the hypothetical ruling compel respondent to
incriminate himself, since it did not force him to take the stand
and subject himself to impeachment by use of the immunized
testimony. Respondent argues that it was his right to testify in
his own behalf that the trial court infringed by threatening him
with the possibility that, if he were to testify and if he were to
give materially inconsistent answers to relevant questions, the
court would permit the State to impeach respondent with his
immunized testimony, if the State could do so. This threat,
respondent now argues, deterred him from taking the stand in his
own behalf, and
Page 440 U. S. 467
thereby constituted an unconstitutional infringement of his
right to testify. Brief for Respondent 13.
This appears to be the theory that the Appellate Division
proceeded upon, see
151 N.J.Super. 200, 204, 209,
, 952, 955, and it appears to be the most plausible
reasoning upon which one could conclude that this case involves an
actual, and not hypothetical, invasion of federal rights. As such,
the Court today sub silentio
decides as a matter of
federal law that the hypothetical ruling by a state court that it
would permit impeachment with immunized testimony in certain
circumstances not yet come to pass creates a sufficient
infringement on the right to testify as to create a controversy
capable of being adjudicated here.
But this claimed burden on the right to testify is too
speculative to support the exercise of jurisdiction by this Court
over the ultimate dispute concerning the use of immunized
testimony. On this record, we cannot tell whether respondent would
have taken the stand even had he obtained the ruling he sought from
the trial court. The decision by a criminal defendant to testify is
often the most important decision he faces in the trial, and it
seldom turns on the resolution of one factor among many. Even had
respondent taken the stand, there is no assurance he would have
given inconsistent answers to questions. Indeed, respondent
vigorously has argued, in this Court and in the state courts, that
he would not have testified in any manner inconsistently with his
immunized testimony. Moreover, even had inconsistent answers been
given, the trial court would have had to determine whether the
answers were offered in response to relevant and material questions
before it would have permitted impeachment. And even then, there is
no certainty that the State actually would have sought to use
immunized materials to impeach respondent.
In these circumstances, I would hold the dispute as to the use
of the immunized testimony to be too remote and speculative to
enable this Court to adjudicate it. Cf. 408 U.
S. S. 468�
v. Tatum,@ 408 U. S.
(1972). By finding sufficient controversy to exist in
this case to reach the federal issue, the Court exercises
jurisdiction over an abstract dispute of no concrete significance,
and as a result renders an advisory opinion, informing respondent
what the State would have been permitted to do or not do had
respondent ever taken the stand.
I find this adjudication of an abstract dispute not only to be
beyond the jurisdiction of the Court, but to be unwise as well. At
a minimum, as our Brother POWELL notes, ante
440 U. S. 462
a requirement that such a claim be adjudicated on appeal only when
presented by a defendant who has taken the stand prevents a
defendant from manufacturing constitutional challenges when he has
no intention of taking the stand and testifying in his own behalf.
More fundamentally, such disembodied decisionmaking removes
disputes from the factual and often legal context that sharpens
issues, highlights problem areas of special concern, and, above
all, gives a reviewing court some notion of the practical reach of
Indeed, my examination of the record in this case makes me
suspect that, in adjudicating an abstract and academic legal
question, the Court has affirmed the reversal of respondent's
conviction on the basis of an issue not even argued by respondent
at the trial level in his attempt to obtain an advance ruling from
the trial court. It is clear to me that the possible use of
immunized testimony to impeach respondent was not at all
respondent's concern before the trial court. At the pretrial
hearing, respondent's counsel conceded that, if respondent gave
materially inconsistent answers, he could be impeached with the
grand jury testimony or prosecuted for perjury. App. 144a. Rather,
respondent was attempting to obtain an advance ruling from the
trial court that the State could not rely on information gathered
from respondent's immunized testimony in formulating questions for
respondent on cross-examination. His argument to the trial court
was that, unless the State could show that it discovered the
Page 440 U. S. 469
that formed the basis of its questions from a source independent
of his immunized testimony, the Fifth Amendment prohibited the
State from asking those questions. And it was in reliance on the
trial court's ruling that it would not decide in advance on this
request -- but would wait until each question was asked to consider
this objection -- that respondent refused to take the stand.
The record at almost every point supports this interpretation of
what it was that respondent sought from the trial court. For
example, in the course of conceding that respondent properly would
be subject to impeachment with the grand jury testimony if he gave
answers at trial materially inconsistent with that testimony,
respondent's counsel stated that he
"merely want[ed] a ruling from the Court that, unless the door
is opened, that they are not permitted to use any of [the immunized
testimony] by way of cross-examination, by way of rebuttal, or by
way of cross-examination of any of our witnesses, with the one
limitation, that I think is inherent, is that except in the event
(Emphasis added.) App. 146a. See id.
Similarly, when counsel renewed this argument at the close of
the State's evidence, the record reveals that his concern was not
with impeachment, but with the use of the immunized testimony as a
basis for asking questions. Thus, counsel argued that what the
immunity statute proscribed was "use [of] the fruits of his
testimony to cross examine him in his testimony." Id.
203a. [Footnote 4/1
Page 440 U. S. 470
Concededly, in the passage the Court, quotes, ante
440 U. S.
-455, the trial court stated that, if respondent gave
materially inconsistent answers, it would permit impeachment with
the immunized testimony. But an examination of the entire
discussion from which that quotation is lifted makes it clear that
respondent was not seeking a ruling as to impeachment for
inconsistent statements, but a limitation on the scope of
cross-examination. Thus, just before the quoted exchange,
respondent's counsel assured the trial court that "the direct
examination will in no way be inconsistent with his grand jury
[immunized] testimony," App. 220a, but that the problem concerned
the use of "consistent grand jury testimony which is incriminating
to convict the man on the stand." Ibid.
after the passage upon which the Court relies, respondent waved off
the impeachment issue and stated that the problem that concerned
him was the use by the State of information obtained from the
immunized testimony to force respondent to give answers on the
stand that would incriminate him. [Footnote 4/2
The trial court refused to rule in advance on this attempt to
limit cross-examination, and it was this refusal that respondent
claimed prompted his refusal to testify. Id.
Before the Appellate Division, however, the dispute was transmuted
into one over the ability of the State to impeach respondent with
the immunized testimony. It was on that issue that the conviction
was reversed. And it is on
Page 440 U. S. 471
that issue that this Court affirms that reversal. Thus, because
the Court reaches out to decide a theoretical legal question
presented in an abstract setting, it permits respondent to obtain a
favorable ruling from this Court on an issue of federal law that he
did not assert in the trial court, and that did not form the basis
for his refusing to testify in that court. And I assume respondent
will be free at a new trial to renew his original argument, that
the State is forbidden to use what it learned from the immunized
testimony in formulating questions on cross-examination. This
illustrates, I think, the problems the Court will encounter in
every case in which it abandons the requirement that such an issue
be presented for resolution only in the context of a concrete
dispute about its actual operation at trial.
If this case presented simply the question whether state law had
viewed the federal issue as properly presented, I could understand
better the Court's desire to reach the federal issue. But though a
State may decide whether a federal issue actually present in the
case properly was brought to the attention of its own courts for
adjudication, e.g., Raley v. Ohio, 360 U.
(1959), it never should transform an abstract
dispute about a federal constitutional right into a case or
controversy capable of being adjudicated in this Court simply by
deciding that federal issue. Doremus v. Board of
Education, 342 U. S. 429
342 U. S.
-435 (1952). Otherwise, a State, by ruling on a
purely hypothetical legal question in the context of reviewing a
criminal conviction, could confer Art. III jurisdiction on this
Court where the facts do not support the existence of a case or
I would require that respondent take the stand and actually
assert the rights he seeks to vindicate in the context of an actual
attempt by the State to use the immunized testimony. Because the
Court does not require this, I dissent.
"Mr. Wilbert [defense counsel]: Your Honor, what they are going
to do is attempt to enlarge the cross-examination to question him
about aspects of that grand jury testimony when he is not
inconsistent at all on direct examination with it. They're going to
make him inconsistent or make him incriminate himself by the use of
the grand jury testimony. . . . If we stay out of the area totally
and then, on cross-examination, they ask him to give an answer
that's consistent with his grand jury testimony but which
incriminates him, how can that possibly be permitted, your
. . . [W]hat they're doing there is utilizing that
grand jury testimony not to show an inconsistency but to create
consistent incrimination. . . . "
App. 203a-204a (emphasis added). See id.
at 168a, 173a,
"Mr. Wilbert: . . . . If they're allowed to open the grand jury
testimony of Mr. Portash by asking him the questions that they only
gained knowledge of in his grand jury testimony and when he didn't
testify about it on direct, I submit it is an absolute erroneous
use under the law, erroneous use of that grand jury testimony and
that's what I'm -- that's why I'm here seeking clarification,
that's what it's all about."
at 228a. See id.
at 225a, 228a,