explaining how basic gist of Justice Black’s concurrence in Grunewald motivated full Court in Griffin
How later courts described this case
- explaining how basic gist of Justice Black’s concurrence in Grunewald motivated full Court in Griffin
- an accused attorney’s constitutional right against self-incrimination was violated when the attorney’s prior claim of the privilege was introduced to impeach his credibility
- "It is elementary that a prior statement may be used to impeach a witness’ credibility only if that statement is in fact inconsistent with the witness’ testimony at trial.”
Written by the judges who cited it.
The opinion
NIX, Justice
(concurring).
While I join the Majority opinion, I feel compelled to comment on the belief expressed in Mr. Chief Justice Jones’ Dissenting opinion that the resolution of the instant appeal is premised on a misapplication of the controlling statute governing the nature of review by this Court.
Apparently, there is some misunderstanding as to the effect of the legislative directive that this Court review de novo an allegation of professional misconduct.
The pertinent portion of the controlling statute reads as follows:
“and it shall be the duty of said supreme court to review the same de novo-, and the complainant shall have the right to offer new testimony by deposition or otherwise as said supreme court may direct, and upon hearing said court may modify, reverse or affirm said judgment, order or decree of the court below, as the justice and equity of the case shall require, . . .”
(Emphasis added)
Act of May 19, 1879, P.L. 66, § 1, 17 P.S. § 1663. In construing the instant provision in Krehel Appeal, 419 Pa. 86 , 213 A.2d 375 (1965) we said:
“Since the review is de novo, we are not bound by the findings and conclusions of the court below, but are free to make our own determination as to the weight and credibility of the evidence, and the inferences to be drawn therefrom, bearing in mind the well-established principle that a preponderance of evidence is necessary to establish an attorney’s unprofessional conduct and the proof of such conduct must be clear and satisfactory; . . . ”
Id. at 89 , 213 A.2dat377.
*128 However, in my judgment, it was not the import of the above quoted language to limit the methods available to us to determine those facts upon which a decision must depend. Unquestionably, we are free to make contrary findings of fact, draw independent inferences and reach opposing conclusions from those of the reviewing tribunal below. This however, does not preclude us from having the benefit of the appraisal of credibility made by the tribunal before which the witnesses actually appeared. Here, as a result of the taint occasioned by the improper consideration by the panel of the invocation of the 5th Amendment privilege, we were denied the opportunity. The purpose for the instant remand is to obtain a proper evaluation of the credibility of the witnesses from the tribunal below before we reach our ultimate decision. 1
ROBERTS, J., joins in this concurring opinion.
. Mr. Chief Justice Jones in his dissent observed:
“The nature of our de novo review pursuant to the Act of May 19, 1879, requires in every case that we review a cold record. This record may be modified on appeal to this Court where errors of law have been committed by the court below. If the court below committed error in receiving certain evidence, then that evidence can be expunged from the record by this Court.” I have no quarrel with the accuracy of this statement but I
cannot agree that it is in any way inconsistent with the action taken by the majority of the Court today. While we are not mandated to seek the. hearing court’s appraisal of the credibility of the witnesses appearing in the litigation, there is nothing in the Act that prevents us from obtaining an untainted judgment on this issue, if we deem it desirable before reaching our final conclusion. Because of the importance of the issue of credibility in this lawsuit we are of the opinion that justice demands this added precaution.
The dissent is also misleading insofar as it suggests that the mandate of the majority’s opinion requires a second complete evidentiary hearing. The order only requires that the court below reassess its judgment as to the credibility of the witnesses, excluding any consideration for the fact that they may have invoked the protection of the 5th Amendment in another proceeding.