People v. Burkert

Mr. Justice Schaefer, dissenting:

I agree with the court’s disposition of the defendant’s claims that he was deprived of the right to counsel and of the right of trial by jury, and I agree that the trial court did not err in denying the continuance which the defendant requested. I do not agree that the immunity order entered by the trial court was improper. The question is important because every exemption from the basic obligation of the citizen to testify to what he knows impedes the administration of justice.

The opinion of the court assumes that the question for decision is the incriminating character of the specific questions put to the witness before the grand jury. Ordinarily, after a witness has refused upon the ground of self-incrimination to answer questions before the grand jury, he is brought before the court which then determines as to each question whether or not the privilege was properly invoked and orders the witness to answer those questions which are not privileged. (Cf. People v. Rockola, 346 Ill. 27 .) As I read the immunity statute it contemplates a different procedure. It is concerned with the circumstances which are made to appear to the trial court prior to the entry of an immunity order, and not with the incriminating quality of specific questions put to the witness after the entry of an immunity order.

The statute says that the court “shall not enter an order releasing such witness from such liability if it shall reasonably appear to the court that such testimony or evidence, * * * would subject such witness to an indictment, information or prosecution * * * under the laws of another State or of the United States * * *. Any witness who, having been granted immunity as aforesaid, refuses to testify or produce evidence, documentary or otherwise, may be punished for contempt of the court * * (Ill. Rev. Stat. 1953, chap. 38, par. 580a.) This statute conditions the trial court’s authority to enter an immunity order upon its appraisal of the information before it when the order is entered. If the immunity order is justified upon the showing made at that time, no privilege attaches with respect to specific questions thereafter directed to the witness.

The test fixed by the statute is whether “it shall reasonably appear to the court” that the witness’s testimony would subject him to a Federal prosecution. In lieu of that test the court substitutes the very different requirement that it must be “perfectly clear that the answers to the questions propounded to him could not possibly have a tendency to incriminate him under Federal law” before an immunity order is entered. The test thus substituted is not only unauthorized by the statute; it goes beyond any holding of this court when the question of the incriminatory character of a particular question was directly involved.

The circumstances before the trial court in this case showed that the witness had secured .the stamp required under the Federal statute for the period terminating July x, 1953. The court’s order directed that the questions put to the witness be limited to’ that period. It is not enough, it seems to me, to show that there are other Federal requirements in connection with the making of returns and the keeping of records with which the witness may not have complied. I see no “reasonable” basis for inferring that the witness complied with some of the requirements of the applicable Federal law and not with others. It is more reasonable, it seems to me, to infer full rather than partial compliance, and that is what the trial court did.

But even upon the construction of the statute which the opinion of the court seems to adopt, I would hold that the questions here involved are not incriminatory. The contrary result is reached upon the basis of Hoffman v. United States, 341 U.S. 479 , and some memorandum decisions of the Supreme Court of the United States following that case. The holding of the Hoffman case that the witness’s claim of self-incrimination must be sustained “unless it is perfectly clear * * * that the witness is mistaken and that the answer cannot possibly” tend to incriminate is new in the Federal system and new in Illinois. McCormick on Evidence, sec. 129.

The question which on its face calls for an incriminating answer does not cause much difficulty in judicial administration of the privilege against self-incrimination. The hard problems are raised by those questions which upon their face are innocuous but which nevertheless are said to tend to incriminate. It has been settled since Chief Justice Marshall’s decision in United States v. Burr, 25 Fed. Cas. 38 , that a witness may not determine for himself the incriminating quality of the questions put to him, for to allow him to do so would be to close the door to permissible investigation. That determination rests with the judge. On the other hand, because the witness cannot put before the judge all of the circumstances which cause him to fear possible incrimination by reason of his answer without forfeiting his privilege, the courts have accepted the witness’s claim of privilege where it reasonably appeared that the answer might tend to incriminate. In dealing with the paradox which the privilege thus presents, the courts have appraised the incriminating quality of the question in terms of the setting in which it was asked. McCormick on Evidence, sec. 129; 8 Wigmore, Evidence, sec. 226off; Falknor, ”Self-Incrimination Privilege: ‘Links in the Chain,’ ” 5 Vand. L. R. 479; Meltzer, “Required Records * * * and the Privilege Against Self-Incrimination,” 18 U. of Chi. L. R. 687.

The circumstances in the present case differ widely from those involved in the Federal decisions relied upon by the court. In each of those cases a Federal grand jury was investigating Federal crimes with a view to Federal prosecution. In the present case the inquiry was being conducted before a State grand jury. The subject of the inquiry was the existence of offenses against the laws of the State. To secure possible evidence against others, immunity from State offenses was granted to the witness. The record does not suggest that Federal law enforcement officials had indicated the slightest concern with the activities of the defendant.

The questions asked of the defendant fall into six groups: (1) What was your business or occupation during the period from July 1, 1952, to June 30, 1953? (2) Where did you work prior to July 1, 1953? (3) Did you know David Cohen or Harry Siegel prior to July 1, 1953? (4) do you know of any gambling in Lake County prior to July 1, 1953? (5) Do you know of any vice or prostitution in Lake County prior to July 1, 1953? (6) Where did you work in 1938 and 1948?

So far.as the sixth group is concerned defendant’s answer to the rule to show cause admitted that his refusal to answer was based solely on a supposed apprehension of prosecution under the laws of Illinois. As to State prosecution, he had been granted immunity. His refusal to answer these questions was therefore not justified, nor was he entitled to impose conditions upon his undertaking to answer. That refusal, without more, would be enough to sustain the judgment below. (People v. Rockola, 346 Ill. 27 .) It may be that the fifth question should be regarded in the same light. Because of the ambiguous quality of the term “vice,” however, it may be treated as the equivalent of the fourth question, directed to knowledge of gambling.

The first four questions do not on their face call for answers which would tend to incriminate defendant under the Federal statutes relating to the wagering tax. To show their incriminating tendency despite their innocuous appearance, defendant before the trial court and in his brief in this court has listed the duties imposed upon one who engages in the business of accepting wagers, and the penalties attached to a failure to discharge those duties. His argument is essentially that answers to the question asked would disclose that defendant, during the year 1953, had been engaged in the business of taking wagers, that there are various duties imposed upon persons so engaged, that it is possible he may not have complied with them, and that the admission that he was in such an occupation at all was therefore one step toward Federal prosecution.

The basic flaw in this argument lies in the fact that defendant had already testified that he held a Federal wagering tax stamp for the period which the questioning covered. An answer to the question as to his occupation, therefore, would call for nothing more than what was a matter of public record and was already known to the court. The same may be said of the question as to whether he knew of any gambling in Lake County. The question as to his acquaintance with Siegel is innocuous, for nothing appears in the record concerning Siegel. As to Cohen, the question is closer, for Burkert’s attorney stated that a newspaper quoted police officers as saying that Burlcert had said, apparently at the time of his arrest, that he “was operating a handbook for Mr. David Cohen.” But even here it does not appear that subsequent questions would necessarily have called for incriminating answers, for succeeding questions might well have been framed to elicit defendant’s knowledge of activities of Cohen in which the witness did not participate.

The case before us thus differs from Hoffman v. United States, where an answer to the question as to defendant’s occupation might have revealed incriminating matter not already known. And the question in that case as to the whereabouts of an acquaintance who was apparently evading service of a subpoena, differs both in form and substance from the inquiries made here. Applying the standard of the Hoffman case to the questions asked here should not, in my opinion, alter the result. (Cf. Rogers v. United States, 340 U.S. 367 .) I would therefore hold that the judgment of the circuit court should be affirmed.

Mr. Chief Justice Hershey concurs in the foregoing dissenting opinion.