concluding that, although “[o]rdinarily a defendant does not have standing to complain of an erroneous ruling on the scope of the privilege of a witness,” a “defendant does have standing ... to complain that [a] conviction was obtained in a ease where the trial judge went outside [the] judicial province to grant immunity to a witness”
How later courts described this case
- concluding that, although “[o]rdinarily a defendant does not have standing to complain of an erroneous ruling on the scope of the privilege of a witness,” a “defendant does have standing ... to complain that [a] conviction was obtained in a ease where the trial judge went outside [the] judicial province to grant immunity to a witness”
- noting that defendant "expressly stated to the grand jury that he had consulted a lawyer prior to going before the grand jury; that he wished to cooperate with the Government though he understood he did not have to; that this cooperation was voluntary, and that he knew anything he said could be used against him”
- holding that a witness who testifies voluntarily before the grand jury may not claim the privilege when called to testify at the trial on the indictment that the grand jury returned
- recognizing that defendant has standing to challenge grant of immunity “where the trial judge went outside his judicial province to grant immunity to a witness”
Written by the judges who cited it.
Later courts went against this
Questioned by In Re Mayer Morganroth, Raymond J. Donovan, Secretary of Labor v. Frank Fitzsimmons, 718 F.2d 161 (1983)
We also note that the Supreme Court’s recent decision in Pillsbury Co. v. Conboy, — U.S. -, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983), raises doubt as to the continued validity of the Ellis Court’s view.
Declined to follow by State v. Williams, 206 Conn. 203 (1988)
We decline to apply the rationale of Ellis to this case for two reasons.
Distinguished
Distinguished by Lyons v. United States, 1994 D.C. App. LEXIS 116 (1994)
We hold that the Ellis exception to the no-standing rule of Alderman and Long is inapplicable in the instant case because there was no erroneous ruling on the Fifth Amendment waiver issue.
Distinguished by In re R. D. J., 348 A.2d 301 (1975)
The Ellis case is inapposite.
Distinguished by Matter of RDJ, 1975 D.C. App. LEXIS 283 (1975)
The Ellis case is inapposite.
The opinion
DANAHER, Circuit Judge
(concurring in part and dissenting in part):
I fully agree that the convictions of Ellis and Watkins should be affirmed. I dissent from the treatment and the conclusions in Parts A and B, but I concur in so much of Part C of Judge Leventhal’s opinion as now holds that under the circumstances 1 of this case, the witness Izzard was not entitled to claim at trial the privilege against self-incrimination which, after advice of counsel, he had expressly waived when he testified before the grand jury.
As a companion in the crime of arson, directly participating with these appellants in the events leading to their apprehension and conviction, Izzard owed the public duty to testify which every person within the jurisdiction of government is bound to perform. 2 The public interest in prosecuting those accused of crime requires no less. 3 With the rights of the public in mind, on the one hand, and, on the other, with these appellants claiming that they could not validly be *807 convicted on testimony elicited from Izzard. I have no difficulty in striking a balance.
Let it be noted that Izzard is not here complaining. The appellants are contending, in effect, that his rights became their rights, and that a violation of his rights requires a reversal of their convictions. The claim is spurious.
Where the witness is not the party, the party may not claim the privilege nor take advantage of an error of the court in overruling it. On this point the authorities are practically unanimous. [Citations omitted.] 4
In not dissimilar circumstances, we have taken the position that the accused would lack standing to object to the inculpatory testimony. 5
Let me indicate briefly just what happened and the substance of Izzard’s testimony at trial.
Shortly before and shortly after midnight on August 1, 1967, two fires were reported. Investigating officers arrested Izzard who was carrying a large rock and two other culprits, one Jackson and one Ellis who were carrying incendiary devices identified on the record as “molotov cocktails.” A fourth person then escaped but was later apprehended. He is the appellant Watkins. When called by the Government to testify at trial, Izzard was advised by the judge that he was not compelled to testify because of the possibility of incrimination, whereupon Izzard replied “I wish not to testify.” An attorney was appointed to advise Izzard of his rights.
Out of the presence of the jury, an extensive colloquy occurred after which the jury returned, and the judge called Izzard as the court’s witness. When Izzard on Fifth Amendment grounds refused to reply to the questions posed by the judge, the latter directed that Izzard respond. Thereafter the witness testified in detail. He identified Ellis as having thrown a rock through a store window and added that Jackson threw two molotov cocktails through the broken window, neither of which lighted. However, “Watkins threw the last one and that is the one that started the fire.”
That particular fire having been extinguished, the group of four planned further ventures. Jackson and Watkins secured a gallon of gasoline in a bucket and another gallon in a jug. The four young men filled some six bottles with gasoline and inserted wicks. The culprits perfected plans, Izzard testified, “to burn a store” at the corner of Tenth Street and L. They abandoned the plan to burn “that store because someone might get burned up” since there was an apartment next to the store. As they set about locating another objective, police picked up three of the men. Izzard told the police that Watkins who had escaped was known to him as “Jones,” explaining that as the officers “didn’t catch him I didn’t see no reason to bringing his name up.”
The trial judge explained to the jury that Izzard had been called by the court for a “trial judge has the right to call witnesses who can furnish light on what is being considered by the jury in this case.” Each attorney, he added, “was to be given the opportunity to question him, to cross examine his testimony.” And that course was followed.
Surely under the circumstances, the trial judge in response to the public’s interest in the truth as to guilt or innocence was bound to balance that interest against any possible rights the appellants might seek to derive from the ruling when Izzard was made the court’s witness. 6 I suggest with some assurance *808 that the appellants gained no rights, either to exclude relevant and probative evidence because elicited from Izzard or to challenge the ruling which produced it.
I deem it irrelevant to our disposition that our concern relates to Izzard’s Fifth Amendment rights and their reach whereas the Court last month was speaking to comparable results stemming from a Fourth Amendment issue. Suppression of the product of a violation of the Fourth Amendment
can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing. 7 (Emphasis added.)
So Izzard’s rights were his own, personal to himself, and “like some other constitutional rights, may not be vicariously asserted.” [Citations omitted.] 8
As far as I can see, an appropriate disposition of this case requires no further treatment. Unless substantial rights of these appellants had been violated, affirmance is clearly in order, and no showing to the contrary has here been made. And that is all we need to say.
. It follows that I agree with so much of Judge Leventlial’s statement of our holding on this aspect as reads: “We hold that where a non-indicted witness has waived his Fifth Amendment privilege by testifying before a grand jury voluntarily and with knowledge of his privilege, his waiver extends to a subsequent trial based on an indictment returned by the grand jury that heard his testimony.” (at 805.)
As to what was disclosed in the transcript concerning waiver, see p. 805. It should be remembered that Izzard had not been indicted, whether because the prosecutor had so stipulated with Izzard’s counsel or even, perhaps, because the grand jury refused to indict in view of Izzard’s cooperation and of the imminence of his entry upon military duty. Certainly the grand jury was not bound to return a true bill.
In any event, it is not at all unusual, and often is necessary, that a prosecutor or the court rely upon an accomplice “because the criminals will almost certainly proceed covertly,” as the Supreme Court noted in Hoffa v. United States, 385 U.S. 293, 311 , 87 S.Ct. 408, 418 , 17 L.Ed.2d 374 (1966), quoting Hand, J., in United States v. Dennis, 183 F.2d 201, 224 (2 Cir. 1950), aff’d, 341 U.S. 494 , 71 S.Ct. 857 , 95 L.Ed. 1137 (1951).
. Cf. Blair v. United States, 250 U.S. 273, 281 , 39 S.Ct. 468 , 63 L.Ed. 679 (1919).
. Cf. Alderman v. United States, 394 U.S. 165 , 89 S.Ct. 961, 967 , 22 L.Ed.2d 176 (1969). The Court there notes the public interest in prosecuting those accused of crime with the result to depend upon “all tile evidence which exposes the truth.”
If we are to recognize “realities,” the entire population of this District, the trial judge and we, ourselves, can not fail to recall the devastation wrought by the series of arsonists who have so recently put to the torch hundreds of properties, with losses running into the millions. And see U.S. News & World Report, Oct. 28, 1968, p. 70, citing excerpts from The Washington Post of Oct. 13, 1968, “Ten Blocks From the White House.”
. Bowman v. United States, 350 F.2d 913, 916 (9 Cir. 1965), cert. denied, 383 U.S. 950 , 86 S.Ct. 1209 , 16 L.Ed.2d 212 (1966).
. Long v. United States, 124 U.S.App.D.C. 14 , 19, 360 F.2d 829, 834 (1966).
. Had Izzard refused to testify and had he then been held in contempt, we would have a very different problem. But it is clear enough that the judge was fully familiar with the holding of the Court in Murphy v. Waterfront Comm’n, 378 U.S. 52, 77-78 , 84 S.Ct. 1594, 1609 , 12 L.Ed.2d 678 (1964) : “We hold that the constitutional privilege against self-incrimi *808 nation protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.” Can one be heard to say the Court so ruled without authority?
Of course the Fifth Amendment would have protected Izzard in any event had adverse action been taken as to him.
. Alderman v. United States, supra note 3, 394 U.S. at 171-172 , 89 S.Ct. at 965 .
. Id., 394 U.S. at 174 , 89 S.Ct. at 966 .