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
J. SKELLY WRIGHT, Circuit Judge,
(dissenting):
I join in Parts A and B of Judge Leventhal’s opinion, but because I cannot agree with Part C I must dissent from the judgment of affirmance.
Judge Leventhal would have us depart from the established principle that “a person who has waived his privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding.” In re Neff, 3 Cir., 206 F.2d 149, 152 (1953). His premise is that compulsion of testimony which does not enhance the risk of prosecution or conviction invades no interest protected by the Fifth Amendment.
On the contrary, I believe the Fifth Amendment not only protects against the risk of prosecution on evidence extorted from the defendant, but also establishes a right to abstain from the demeaning ritual of public self-accusation. In the words of Mr. Justice Douglas, “The Fifth Amendment protects the conscience and the dignity of the individual, as well as his safety and security, against the compulsion of government.” Ullmann v. United States, 350 U.S. 422, 449 , 76 S.Ct. 497, 512 , 100 L.Ed. 511 (1956) (dissenting opinion).
Thus here the witness Izzard chose to waive his right to silence in the privacy of the grand jury hearing. He chose to assert that right rather than recite the evidence of his guilt in open court. The different circumstances of the two proceedings make his decision entirely explicable in terms of those considerations of human dignity which the Fifth Amendment was designed in part to protect.
It is true that compelled self-accusation has not been absolutely barred by the Fifth Amendment. Congress has judged, and a divided Supreme Court has acquiesced in the judgment, that the necessities of public justice allow the compulsion of self-incriminating testimony for the proof of certain serious crimes when immunity from prosecution is granted in return. Ullmann v. United States, supra (6-2 decision); Brown v. Walker, 161 U.S. 591 , 16 S.Ct. 644 , 40 *809 L.Ed. 819 (1896) (5-4 decision). The requirement that immunity be granted at least gives some insurance that the witness’ Fifth Amendment interests will not be overridden lightly. Judge Leventhal’s opinion would allow those same interests to be overridden without legislative provision of the same protective quid pro quo. I cannot agree.
I respectfully dissent.