Appellants, police officers in certain New Jersey boroughs, were
questioned during the course of a state investigation concerning
alleged traffic ticket "fixing." Each officer was first warned
that: anything he said might be used against him in a state
criminal proceeding; he could refuse to answer if the disclosure
would tend to incriminate him; if he refused to answer, he would be
subject to removal from office. The officers' answers to the
questions were used over their objections in subsequent
prosecutions, which resulted in their convictions. The State
Supreme Court, on appeal, upheld the convictions despite the claim
that the statements of the officers were coerced by reason of the
fact that, if they refused to answer, they could, under the New
Jersey forfeiture of office statute, lose their positions. That
statute provides that a public employee shall be removed from
office if he refuses to testify or answer any material question
before any commission or body which has the right to inquire about
matters relating to his office or employment on the ground that his
answer may incriminate him. On the ground that the only real issue
in the case was the voluntariness of the statements, the State
Supreme Court declined to pass upon the constitutionality of the
statute, though the statute was considered relevant for the bearing
it had on the voluntary character of the statements used to convict
the officers. The officers appealed to this Court under 28 U.S.C. §
1257(2), and the question of jurisdiction was postponed to a
hearing on the merits.
Held:
1. The forfeiture of office statute is too tangentially involved
to satisfy the requirements of 28 U.S. C. § 1257(2). The only
bearing it had was whether, valid or not, the choice between being
discharged under it for refusal to answer and self-incrimination
rendered the statements products of coercion. The appeal is
dismissed, the papers are treated as a petition for certiorari, and
certiorari is granted. Pp.
385 U. S. 495-496.
2. The threat of removal from public office under the forfeiture
of office statute to induce the petitioners to forgo the privilege
against self-incrimination secured by the Fourteenth Amendment
rendered the resulting statements involuntary, and therefore
inadmissible in the state criminal proceedings. Pp.
385 U. S.
496-500.
Page 385 U. S. 494
(a) The choice given petitioners either to forfeit their jobs or
to incriminate themselves constituted coercion. Pp.
385 U. S.
496-498.
(b) Whether there was a "waiver" is a federal question. P.
385 U. S.
498.
(c) Where the choice is "between the rock and the whirlpool"
(
Frost Trucking Co. v. Railroad Comm'r, 271 U.
S. 583,
271 U. S.
593), the decision to "waive" one or the other is made
under duress. P.
385 U. S.
498.
Appeal dismissed, and certiorari granted; 44 N.J. 209,
207 A.2d
689; 44 N.J. 259,
208
A.2d 146, reversed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Appellants were police officers in certain New Jersey boroughs.
The Supreme Court of New Jersey ordered that alleged irregularities
in handling cases in the municipal courts of those boroughs be
investigated by the Attorney General, invested him with broad
powers of inquiry and investigation, and directed him to make a
report to the court. The matters investigated concerned alleged
fixing of traffic tickets.
Before being questioned, each appellant was warned (1) that
anything he said might be used against him in any state criminal
proceeding; (2) that he had the privilege to refuse to answer if
the disclosure would tend to incriminate him; but (3) that, if he
refused to answer, he would be subject to removal from office.
[
Footnote 1]
Page 385 U. S. 495
Appellants answered the questions. No immunity was granted, as
there is no immunity statute applicable in these circumstances.
Over their objections, some of the answers given were used in
subsequent prosecutions for conspiracy to obstruct the
administration of the traffic laws. Appellants were convicted, and
their convictions were sustained over their protests that their
statements were coerced [
Footnote
2] by reason of the fact that, if they refused to answer, they
could lose their positions with the police department.
See
44 N.J. 209,
207 A.2d
689,
44
N.J. 259,
208 A.2d
146.
We postponed the question of jurisdiction to a hearing on the
merits. 383 U.S. 941. The statute whose validity was sought to be
"drawn in question," 28 U.S.C. § 1257(2), was the forfeiture
statute. [
Footnote 3] But the
New
Page 385 U. S. 496
Jersey Supreme Court refused to reach that question (44 N.J. at
223, 207 A.2d at 697), deeming the voluntariness of the statements
as the only issue presented.
Id. at 220-222, 207 A.2d at
695-696. The statute is therefore too tangentially involved to
satisfy 28 U.S.C. § 1257(2), for the only bearing it had was
whether, valid or not, the fear of being discharged under it for
refusal to answer, on the one hand, and the fear of
self-incrimination, on the other, was "a choice between the rock
and the whirlpool," [
Footnote
4] which made the statements products of coercion in violation
of the Fourteenth Amendment. We therefore dismiss the appeal, treat
the papers as a petition for certiorari (28 U.S.C. § 2103), grant
the petition, and proceed to the merits.
We agree with the New Jersey Supreme Court that the forfeiture
of office statute is relevant here only for the bearing it has on
the voluntary character of the statements used to convict
petitioners in their criminal prosecutions.
The choice imposed on petitioners was one between
self-incrimination or job forfeiture. Coercion that vitiates a
confession under
Chambers v. Florida, 309 U.
S. 227, and related cases can be "mental, as well as
physical"; "the blood of the accused is not the only hallmark of an
unconstitutional inquisition."
Blackburn v. Alabama,
361 U. S. 199,
361 U. S. 206.
Subtle pressures (
Leyra v. Denno, 347 U.
S. 556;
Haynes v. Washington, 373 U.
S. 503) may be as telling as coarse and vulgar ones. The
question is whether the accused was deprived of his "free choice to
admit, to deny, or to refuse to answer."
Lisenba v.
California, 314 U. S. 219,
314 U. S.
241.
We adhere to
Boyd v. United States, 116 U.
S. 616, a civil forfeiture action against property. A
statute offered
Page 385 U. S. 497
the owner an election between producing a document or forfeiture
of the goods at issue in the proceeding. This was held to be a form
of compulsion in violation of both the Fifth Amendment and the
Fourth Amendment.
Id. at
116 U. S.
634-635. It is that principle that we adhere to and
apply in
Spevack v. Klein, post, p.
385 U. S. 511.
The choice given petitioners was either to forfeit their jobs or
to incriminate themselves. 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. That
practice, like interrogation practices we reviewed in
Miranda
v. Arizona, 384 U. S. 436,
384 U. S.
464-465, is "likely to exert such pressure upon an
individual as to disable him from making a free and rational
choice." We think the statements were infected by the coercion
[
Footnote 5] inherent in this
scheme of questioning,
Page 385 U. S. 498
and cannot be sustained as voluntary under our prior
decisions.
It is said that there was a "waiver." That, however, is a
federal question for us to decide.
Union Pac. R.R. Co. v.Pub.
Service Comm., 248 U. S. 67,
248 U. S. 69-70;
Stevens v. Marks, 383 U. S. 234,
383 U. S.
243-244. The Court, in
Union Pac. R.R. Co. v.Pub.
Service Comm., supra, in speaking of a certificate exacted
under protest and in violation of the Commerce Clause, said:
"Were it otherwise, as conduct under duress involves a choice,
it always would be possible for a State to impose an
unconstitutional burden by the threat of penalties worse than it in
case of a failure to accept it, and then to declare the acceptance
voluntary. . . ."
Id. at
248 U. S.
70.
Where the choice is "between the rock and the whirlpool," duress
is inherent in deciding to "waive" one or the other.
"It always is for the interest of a party under duress to choose
the lesser of two evils. But the fact that a choice was made
according to interest does not exclude duress. It is the
characteristic of duress properly so called."
Ibid.
Page 385 U. S. 499
In that case, appellant paid under protest. In these cases also,
though petitioners succumbed to compulsion, they preserved their
objections, raising them at the earliest possible point.
Cf.
Abie State Bank v. Bryan, 282 U. S. 765,
282 U. S. 776.
The cases are therefore quite different from the situation where
one who is anxious to make a clean breast of the whole affair
volunteers the information.
Mr. Justice Holmes in
McAulife v. New Bedford, 155
Mass. 216, 29 N.E. 517, stated a dictum on which New Jersey heavily
relies:
"The petitioner may have a constitutional right to talk
politics, but he has no constitutional right to be a policeman.
There are few employments for hire in which the servant does not
agree to suspend his constitutional right of free speech, as well
as of idleness, by the implied terms of his contract. The servant
cannot complain, as he takes the employment on the terms which are
offered him. On the same principle, the city may impose any
reasonable condition upon holding offices within its control."
Id. at 220, 29 N.E. at 517-518.
The question in this case, however, is not cognizable in those
terms. Our question is whether a State, contrary to the requirement
of the Fourteenth Amendment, can use the threat of discharge to
secure incriminatory evidence against an employee.
We held in
Slochower v. Board of Education,
350 U. S. 551,
that a public school teacher could not be discharged merely because
he had invoked the Fifth Amendment privilege against
self-incrimination when questioned by a congressional
committee:
"The privilege against self-incrimination would be reduced to a
hollow mockery if its exercise could be taken as equivalent either
to a confession of
Page 385 U. S. 500
guilt or a conclusive presumption of perjury. . . . The
privilege serves to protect the innocent who otherwise might be
ensnared by ambiguous circumstances."
Id. at
350 U. S.
557-558.
We conclude that policemen, like teachers and lawyers, are not
relegated to a watered-down version of constitutional rights.
There are rights of constitutional stature whose exercise a
State may not condition by the exaction of a price. Engaging in
interstate commerce is one.
Western Union Tel. Co. v.
Kansas, 216 U. S. 1. Resort
to the federal courts in diversity of citizenship cases is another.
Terral v. Burke Constr. Co., 257 U.
S. 529. Assertion of a First Amendment right is still
another.
Lovell v. City of Griffin, 303 U.
S. 444;
Murdock v. Pennsylvania, 319 U.
S. 105;
Thomas v. Collins, 323 U.
S. 516;
Lamont v. Postmaster General,
381 U. S. 301,
381 U. S.
305-306. The imposition of a burden on the exercise of a
Twenty-fourth Amendment right is also banned.
Harman v.
Forssenius, 380 U. S. 528. We
now hold 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.
Reversed.
[For dissenting opinion of MR. JUSTICE WHITE,
see post,
p.
385 U. S.
530.]
[
Footnote 1]
"Any person holding or who has held any elective or appointive
public office, position or employment (whether state, county or
municipal), who refuses to testify upon matters relating to the
office, position or employment in any criminal proceeding wherein
he is a defendant or is called as a witness on behalf of the
prosecution, upon the ground that his answer may tend to
incriminate him or compel him to be a witness against himself or
refuses to waive immunity when called by a grand jury to testify
thereon or who willfully refuses or fails to appear before any
court, commission or body of this state which has the right to
inquire under oath upon matters relating to the office, position or
employment of such person or who, having been sworn, refuses to
testify or to answer any material question upon the ground that his
answer may tend to incriminate him or compel him to be a witness
against himself, shall, if holding elective or public office,
position or employment, be removed therefrom or shall thereby
forfeit his office, position or employment and any vested or future
right of tenure or pension granted to him by any law of this state
provided the inquiry relates to a matter which occurred or arose
within the preceding five years. Any person so forfeiting his
office, position or employment shall not thereafter be eligible for
election or appointment to any public office, position or
employment in this state."
N.J.Rev.Stat. § 2A:81-17.1 (Supp. 1965).
[
Footnote 2]
At the trial, the court excused the jury and conducted a hearing
to determine whether,
inter alia, the statements were
voluntary. The State offered witnesses who testified as to the
manner in which the statements were taken; the appellants did not
testify at that hearing. The court held the statements to be
voluntary.
[
Footnote 3]
N 1,
supra.
[
Footnote 4]
Stevens v. Marks, 383 U. S. 234,
383 U. S. 243,
quoting from
Frost Trucking Co. v. Railroad Comm'n,
271 U. S. 583,
271 U. S.
593.
[
Footnote 5]
Cf. Lamm, The 5th Amendment and Its Equivalent in
Jewish Law, 17 Decalogue Jour. 1 (Jan.-Feb.1967):
"It should be pointed out, at the very outset, that the Halakhah
does not distinguish between voluntary and forced confessions, for
reasons which will be discussed later. And it is here that one of
the basic differences between Constitutional and Talmudic Law
arises. According to the Constitution, a man cannot be compelled to
testify against himself. The provision against self-incrimination
is a privilege of which a citizen may or may not avail himself, as
he wishes. The Halakhah, however, does not permit
self-incriminating testimony. It is inadmissible, even if
voluntarily offered. Confession, in other than a religious context,
or financial cases completely free from any traces of criminality,
is simply not an instrument of the Law. The issue, then, is not
compulsion, but the whole idea of legal confession."
"
* * * *"
"The Halakhah, then, is obviously concerned with protecting the
confessant from his own aberrations which manifest themselves
either as completely fabricated confessions or as exaggerations of
the real facts. . . . While certainly not all or even most criminal
confessions are directly attributable, in whole or part, to the
Death Instinct, the Halakhah is sufficiently concerned with the
minority of instances, where such is the case, to disqualify all
criminal confessions and to discard confession as a legal
instrument. Its function is to ensure the total victory of the Life
Instinct over its omnipresent antagonist. Such are the conclusions
to be drawn from Maimonides' interpretation of the Halakhah's
equivalent of the Fifth Amendment."
"In summary, therefore, the Constitutional ruling on
self-incrimination concerns only forced confessions, and its
restricted character is a result of its historical evolution as a
civilized protest against the use of torture in extorting
confessions. The Halakhic ruling, however, is much broader, and
discards confessions
in toto, and this because of its
psychological insight and its concern for saving man from his own
destructive inclinations."
Id. at 10, 12.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK and MR. JUSTICE
STEWART join, dissenting.
The majority opinion here and the plurality opinion in
Spevack v. Klein, post, p.
385 U. S. 511,
stem from fundamental misconceptions about the logic and
necessities of the
Page 385 U. S. 501
constitutional privilege against self-incrimination. I fear that
these opinions will seriously and quite needlessly hinder the
protection of other important public values. I must dissent here,
as I do in
Spevack.
The majority employs a curious mixture of doctrines to
invalidate these convictions, and I confess to difficulty in
perceiving the intended relationships among the various segments of
its opinion. I gather that the majority believes that the
possibility that these policemen might have been discharged had
they refused to provide information pertinent to their public
responsibilities is an impermissible "condition" imposed by New
Jersey upon petitioners' privilege against self-incrimination. From
this premise, the majority draws the conclusion that the statements
obtained from petitioners after a warning that discharge was
possible were inadmissible. Evidently recognizing the weakness of
its conclusion, the majority attempts to bring to its support
illustrations from the lengthy series of cases in which this Court,
in light of all the relevant circumstances, has adjudged the
voluntariness, in fact, of statements obtained from accused
persons.
The majority is apparently engaged in the delicate task of
riding two unruly horses at once: it is presumably arguing
simultaneously that the statements were involuntary as a matter of
fact, in the same fashion that the statements in
Chambers v.
Florida, 309 U. S. 227, and
Haynes v. Washington, 373 U. S. 503,
were thought to be involuntary, and that the statements were
inadmissible as a matter of law, on the premise that they were
products of an impermissible condition imposed on the
constitutional privilege. These are very different contentions, and
require separate replies, but, in my opinion, both contentions are
plainly mistaken, for reasons that follow.
Page 385 U. S. 502
I
I turn first to the suggestion that these statements were
involuntary in fact. An assessment of the voluntariness of the
various statements in issue here requires a more comprehensive
examination of the pertinent circumstances than the majority has
undertaken.
The petitioners were at all material times policemen in the
boroughs of Bellmawr and Barrington, New Jersey. Garrity was
Bellmawr's chief of police, and Virtue one of its police officers;
Holroyd, Elwell, and Murray were police officers in Barrington.
Another defendant below, Mrs. Naglee, the clerk of Bellmawr's
municipal court, has since died. In June, 1961, the New Jersey
Supreme Court,
sua sponte, directed the State's Attorney
General to investigate reports of traffic ticket fixing in Bellmawr
and Barrington. Subsequent investigations produced evidence that
the petitioners, in separate conspiracies, had falsified municipal
court records, altered traffic tickets, and diverted moneys
produced from bail and fines to unauthorized purposes. In the
course of these investigations, the State obtained two sworn
statements from each of the petitioners; portions of those
statements were admitted at trial. The petitioners were convicted
in two separate trials of conspiracy to obstruct the proper
administration of the state motor traffic laws, the cases being now
consolidated for purposes of our review. The Supreme Court of New
Jersey affirmed all the convictions.
The first statements were taken from the petitioners by the
State's Deputy Attorney General in August and November, 1961. All
of the usual indicia of duress are wholly absent. As the state
court noted, there was
"no physical coercion, no overbearing tactics of psychological
persuasion, no lengthy incommunicado detention, or efforts to
humiliate or ridicule the defendants."
44 N.J.
Page 385 U. S. 503
209, 220,
207 A.2d
689, 695. The state court found no evidence that any of the
petitioners were reluctant to offer statements, and concluded that
the interrogations were conducted with a "high degree of civility
and restraint."
Ibid.
These conclusions are fully substantiated by the record. The
statements of the Bellmawr petitioners were taken in a room in the
local firehouse for which Chief Garrity himself had made
arrangements. None of the petitioners was in custody before or
after the depositions were taken; each apparently continued to
pursue his ordinary duties as a public official of the community.
The statements were recorded by a court stenographer, who testified
that he witnessed no indications of unwillingness or even
significant hesitation on the part of any of the petitioners. The
Bellmawr petitioners did not have counsel present, but the Deputy
Attorney General testified without contradiction that Garrity had
informed him as they strolled between Garrity's office and the
firehouse that he had arranged for counsel, but thought that none
would be required at that stage. The interrogations were not
excessively lengthy, and reasonable efforts were made to assure the
physical comfort of the witnesses. Mrs. Naglee, the clerk of the
Bellmawr municipal court, who was known to suffer from a heart
ailment, was assured that questioning would cease if she felt any
discomfort.
The circumstances in which the depositions of the Barrington
petitioners were taken are less certain, for the New Jersey Supreme
Court found that there was an informal agreement at the Barrington
trial that the defendants would argue simply that the possibility
of dismissal made the statements "involuntary as a matter of law."
The defense did not contend that the statements were the result of
physical or mental coercion, or that the wills of the Barrington
petitioners were overborne. Accordingly, the State was never
obliged to offer evidence
Page 385 U. S. 504
of the voluntariness in fact of the statements. We are, however,
informed that the three Barrington petitioners had counsel present
as their depositions were taken. Insofar as the majority suggests
that the Barrington statements are involuntary in fact, in the
fashion of
Chambers or
Haynes, it has introduced
a factual contention never urged by the Barrington petitioners and
never considered by the courts of New Jersey.
As interrogation commenced, each of the petitioners was sworn,
carefully informed that he need not give any information, reminded
that any information given might be used in a subsequent criminal
prosecution, and warned that, as a police officer, he was subject
to a proceeding to discharge him if he failed to provide
information relevant to his public responsibilities. The cautionary
statements varied slightly, but all, except that given to Mrs.
Naglee, included each of the three warnings. [
Footnote 2/1] Mrs. Naglee was
Page 385 U. S. 505
not told that she could be removed from her position at the
court if she failed to give information pertinent to the discharge
of her duties. All of the petitioners consented to give statements,
none displayed any significant hesitation, and none suggested that
the decision to offer information was motivated by the possibility
of discharge.
A second statement was obtained from each of the petitioners in
September and December, 1962. These statements were not materially
different in content or circumstances from the first. The only
significant distinction was that the interrogator did not advert
even obliquely to any possibility of dismissal. All the petitioners
were cautioned that they were entitled to remain silent, and there
was no evidence whatever of physical or mental coercion.
All of the petitioners testified at trial, and gave evidence
essentially consistent with the statements taken from them. At a
preliminary hearing conducted at the Bellmawr trial to determine
the voluntariness of the statements, the Bellmawr petitioners
offered no evidence beyond proof of the warning given them.
The standards employed by the Court to assess the voluntariness
of an accused's statements have reflected a number of values, and
thus have emphasized a variety of factual criteria. The criteria
employed have included threats of imminent danger,
Payne v.
Arkansas, 356 U. S. 560,
physical deprivations,
Reck v. Pate, 367 U.
S. 433, repeated or extended interrogation,
Chambers
v. Florida, 309 U. S. 227,
limits on access to counsel or friends,
Crooker v.
California, 357 U. S. 433,
length and illegality of detention under state law,
Haynes v.
Washington, 373 U. S. 503,
individual weakness or incapacity,
Lynumn v. Illinois,
372 U. S. 528, and
the adequacy of warnings of constitutional rights,
Davis v.
North Carolina, 384 U. S. 737.
Whatever the criteria employed, the duty of the Court has been "to
examine the entire
Page 385 U. S. 506
record," and thereby to determine whether the accused's will
"was overborne by the sustained pressures upon him."
Davis v.
North Carolina, 384 U. S. 737,
384 U. S. 741,
384 U. S.
739.
It would be difficult to imagine interrogations to which these
criteria of duress were more completely inapplicable, or in which
the requirements which have subsequently been imposed by this Court
on police questioning were more thoroughly satisfied. Each of the
petitioners received a complete and explicit reminder of his
constitutional privilege. Three of the petitioners had counsel
present; at least a fourth had consulted counsel, but freely
determined that his presence was unnecessary. These petitioners
were not in any fashion "swept from familiar surroundings into
police custody, surrounded by antagonistic forces, and subjected to
the techniques of persuasion. . . ."
Miranda v. Arizona,
384 U. S. 436,
384 U. S. 461.
I think it manifest that, under the standards developed by this
Court to assess voluntariness, there is no basis for saying that
any of these statements were made involuntarily.
II
The issue remaining is whether the statements were inadmissible
because they were "involuntary as a matter of law," in that they
were given after a warning that New Jersey policemen may be
discharged for failure to provide information pertinent to their
public responsibilities. What is really involved on this score,
however, is not in truth a question of "voluntariness" at all, but
rather whether the condition imposed by the State on the exercise
of the privilege against self-incrimination, namely dismissal from
office, in this instance serves, in itself, to render the
statements inadmissible. Absent evidence of involuntariness in
fact, the admissibility of these statements thus hinges on the
validity of the consequence which the State acknowledged might have
resulted if the statements had not been given. If the consequence
is
Page 385 U. S. 507
constitutionally permissible, there can surely be no objection
if the State cautions the witness that it may follow if he remains
silent. If both the consequence and he warning are constitutionally
permissible, a witness is obliged, in order to prevent the use of
his statements against him in a criminal prosecution, to prove
under the standards established since
Brown v.
Mississippi, 297 U. S. 278,
that, as a matter of fact, the statements were involuntarily made.
The central issues here are therefore identical to those presented
in
Spevack v. Klein, supra: whether consequences may
properly be permitted to result to a claimant after his invocation
of the constitutional privilege, and, if so, whether the
consequence in question is permissible. For reasons which I have
stated in
Spevack v. Klein, in my view, nothing in the
logic or purposes of the privilege demands that all consequences
which may result from a witness' silence be forbidden merely
because that silence is privileged. The validity of a consequence
depends both upon the hazards, if any, it presents to the integrity
of the privilege and upon the urgency of the public interests it is
designed to protect.
It can hardly be denied that New Jersey is permitted by the
Constitution to establish reasonable qualifications and standards
of conduct for its public employees. Nor can it be said that it is
arbitrary or unreasonable for New Jersey to insist that its
employees furnish the appropriate authorities with information
pertinent to their employment.
Cf. Beilan v. Board of
Education, 357 U. S. 399;
Slochower v. Board of Education, 350 U.
S. 551. Finally, it is surely plain that New Jersey may,
in particular, require its employees to assist in the prevention
and detection of unlawful activities by officers of the state
government. The urgency of these requirements is the more obvious
here, where the conduct in question is that of officials directly
entrusted with the administration of justice. The importance for
our systems of justice
Page 385 U. S. 508
of the integrity of local police forces can scarcely be
exaggerated. Thus, it need only be recalled that this Court itself
has often intervened in state criminal prosecutions precisely on
the ground that this might encourage high standards of police
behavior.
See, e.g., Ashcraft v. Tennessee, 322 U.
S. 143;
Miranda v. Arizona, supra. It must be
concluded, therefore, that the sanction at issue here is reasonably
calculated to serve the most basic interests of the citizens of New
Jersey.
The final question is the hazard, if any, which this sanction
presents to the constitutional privilege. The purposes for which,
and the circumstances in which, an officer's discharge might be
ordered under New Jersey law plainly may vary. It is, of course,
possible that discharge might, in a given case, be predicated on an
imputation of guilt drawn from the use of the privilege, as was
thought by this Court to have occurred in
Slochower v. Board of
Education, supra. But, from our vantage point, it would be
quite improper to assume that New Jersey will employ these
procedures for purposes other than to assess in good faith an
employee's continued fitness for public employment. This Court,
when a state procedure for investigating the loyalty and fitness of
public employees might result either in the
Slochower
situation or in an assessment in good faith of an employee, has,
until today, consistently paused to examine the actual
circumstances of each case.
Beilan v. Board of Education,
supra; Nelson v. Los Angeles County, 362 U. S.
1. I am unable to see any justification for the
majority's abandonment of that process; it is well calculated both
to protect the essential purposes of the privilege and to guarantee
the most generous opportunities for the pursuit of other public
values. The majority's broad prohibition, on the other hand,
extends the scope of the privilege beyond its essential purposes,
and seriously hampers the protection of other important values.
Despite the majority's
Page 385 U. S. 509
disclaimer, it is quite plain that the logic of its prohibitory
rule would, in this situation, prevent the discharge of these
policemen. It would therefore entirely forbid a sanction which
presents, at least on its face, no hazard to the purposes of the
constitutional privilege, and which may reasonably be expected to
serve important public interests. We are not entitled to assume
that discharges will be used either to vindicate impermissible
inferences of guilt or to penalize privileged silence, but must
instead presume that this procedure is only intended, and will only
be used, to establish and enforce standards of conduct for public
employees. [
Footnote 2/2] As such,
it does not minimize or endanger the petitioners' constitutional
privilege against self-incrimination. [
Footnote 2/3]
Page 385 U. S. 510
I would therefore conclude that the sanction provided by the
State is constitutionally permissible. From this, it surely follows
that the warning given of the possibility of discharge is
constitutionally unobjectionable. Given the constitutionality both
of the sanction and of the warning of its application, the
petitioners would be constitutionally entitled to exclude the use
of their statements as evidence in a criminal prosecution against
them only if it is found that the statements were, when given,
involuntary in fact. For the reasons stated above, I cannot agree
that these statements were involuntary in fact.
I would affirm the judgments of the Supreme Court of New
Jersey.
[
Footnote 2/1]
The warning given to Chief Garrity is typical.
"I want to advise you that anything you say must be said of your
own free will and accord, without any threats or promises or
coercion, and anything you say may be, of course, used against you
or any other person in any subsequent criminal proceedings in the
courts of our state."
"You do have, under our law, as you probably know, a privilege
to refuse to make any disclosure which may tend to incriminate you.
If you make a disclosure with knowledge of this right or privilege,
voluntarily, you thereby waive that right or privilege in relation
to any other questions which I might put to you relevant to such
disclosure in this investigation."
"This right or privilege which you have is somewhat limited to
the extent that you, as a police officer, under the laws of our
state, may be subjected to a proceeding to have you removed from
office if you refuse to answer a question put to you under oath
pertaining to your office or your function within that office. It
doesn't mean, however, you can't exercise the right. You do have
the right."
"A. No, I will cooperate."
"Q. Understanding this, are you willing to proceed at this time
and answer any questions?"
"A. Yes."
[
Footnote 2/2]
The legislative history of N.J.Rev.Stat. 2A:81-17.1 provides
nothing which clearly indicates the purposes of the statute, beyond
what is to be inferred from its face. In any event, the New Jersey
Supreme Court noted below that the State would be entitled, even
without the statutory authorization, to discharge state employee
who declined to provide information relevant to their official
responsibilities. There is therefore nothing to which this Court
could properly now look to forecast the purposes for which or
circumstances in which New Jersey might discharge those who have
invoked the constitutional privilege.
[
Footnote 2/3]
The late Judge Jerome Frank thus once noted, in the course of a
spirited defense of the privilege, that it would be entirely
permissible to discharge police officers who decline, on grounds of
the privilege, to disclose information pertinent to their public
responsibilities. Judge Frank quoted the following with
approval:
"'
Duty required them to answer. Privilege permitted them to
refuse to answer. They chose to exercise the privilege, but the
exercise of such privilege was wholly inconsistent with their duty
as police officers. They claim that they had a constitutional
right to refuse to answer under the circumstances, but . . .
they had no constitutional right to remain police officers
in the face of their clear violation of the duty imposed upon
them.'
Christal v. Police Commission of San
Francisco."
Citing
33 Cal. App. 2d
564, 92 P.2d 416. (Emphasis added by Judge Frank.)
United
States v. Field, 193 F.2d 92, 106 (separate opinion).