Opinion — Stevens v. Marks

SUPREME COURT OF THE UNITED STATES

Nos. 210 anp 290.—OctToser TERM, 1965.

James T. Stevens, Petitioner,}On Writ of Certiorari to

210 v. the Appellate Division

Charles Marks, Justice of the; of the Supreme Court

‘Supreme Court of New| of New York, First Ju-

York, County of New York.) dicial Department.

James T. Stevens, Petitioner,) On Writ of Certiorari to

290 v. the United States Court

John J. McCloskey, Sheriff of} of Appeals for the Sec-

New York City. ond Circuit.

[February 28, 1966.]

Mr. Justice Doveuas delivered the opinion of the

Court.

Petitioner, a member of the New York City Police

Department, was summarily discharged on July 15,

1964. On June 26 he had been subpoenaed before a New

York County grand jury, known as the First June 1964

Grand Jury. Before appearing in the grand jury room,

an Assistant District Attorney advised him to sign a

waiver of immunity, saying that otherwise he would be

subject to removal from public office... He signed the

1 Article I, §6, of the New York Constitution provides in part:

“No person shall be subject to be twice put in jeopardy for the

same offense; nor shall he be compelled in any criminal case to be

a witness against himself, providing, that any public officer who,

upon being called before a grand jury to testify concerning the con-

duct of his present office or of any public office held by him within

five years prior to such grand jury call to testify, or the performance

of his official duties in any such present or prior offices, refuses to

sign a waiver of immunity against subsequent criminal prosecution

or to answer any relevant question concerning such matters before

such grand jury, shall by virtue of such refusal, be disqualified from

holding any other public office or public employment for a period

of five years from the date of such refusal to sign a waiver of

SSIES ROUSE NR IN SAR ARSC PINAR AE EP HORE

2 STEVENS v. MARKS.

waiver.2 Thereupon he was an unsworn witness before

the grand jury:

“Q. Lieutenant . . . Stevens, as was pointed out

to you earlier, this grand jury is inquiring into the

crimes of conspiracy to commit the crime of bribery

of a public officer and the crime of bribery of a

public officer; do you understand that?

“A. I do.

“Q. Do you understand further that you have been

called here as a potential defendant, not as a wit-

ness; do you understand that?

“A. I do.

“Q. Do you understand that under the Constitu-

tion of the United States you have a right to refuse

to answer any questions that might tend to incrimi-

nate you; do you understand that?

“A. I do.

“Q. Do you understand further that under the

New York State Constitution, the New York City

Charter, a public officer is required, if he desires to

continue to hold his public position, to sign a limited

waiver of immunity; do you understand that?

immunity against subsequent prosecution, or to answer any rele-

vant question concerning such matters before such grand jury, and

shall be removed from his present office by the appropriate authority

or shall forfeit his present office at the suit of the attorney-general.”

2 The waiver read in part:

“ . . all benefits, privileges, rights and immunity which I would

otherwise obtain from indictment, prosecution and punishment for

or on account of, regarding or relating to any matter, transaction

or thing, concerning the conduct of my office or the performance

of my official duties, or the property, government or affairs of the

State of New York or of any county included within its teritorial

limits, or the . . . official conduct of any officer of the city or of

any such county, concerning any of which matters, transactions or

things I may testify or produce evidence, documentary or otherwise,

before the Ist, 1964 Grand Jury in the County of New York, in

the investigation being conducted by said Grand Jury.”

SWI ARNG AER ESM IIL ROE SORIA LE AEG SESE ETE RI LLY RUE AED SERENE TS I

STEVENS v. MARKS.

“A. I do.

“Q. Do you understand that that means that if

you sign a limited waiver of immunity which re-

quires you to answer questions concerning the con-

duct of your public office, that what you say will be

taken down and recorded, and that should this grand

jury vote a true bill against you, that is an indict-

ment—+to indict you for a crime, the testimony you

give can and will be used against you. Do you

understand that?

“A. I do.

“Q. Are you prepared to sign a waiver of immu-

nity?

“A. T am.”

That petitioner’s waiver of “all benefits, privileges,

rights and immunity which I would otherwise obtain

from indictment, prosecution and punishment” covered

both the privilege against self-incrimination and immu-

nity from prosecution ® is evidenced by the foregoing

colloquy.

Then petitioner was sworn, asked a few questions, given

a questionnaire to fill out, and asked to return with it

completed.

At these stages petitioner had no counsel. On July

15, he returned to a different grand jury—the Third

July 1964 Grand Jury. Now he had counsel and refused

to sign a waiver of immunity. He was examined, as

before, concerning his knowledge that to save his job he

had to waive his immunity. He acknowledged that he

knew the consequences of his refusal to waive his

immunity and was excused.

8 This was the view of the Appellate Division which, when affirm-

ing petitioner’s first contempt conviction, said: “[I]f the waiver of

immunity is still valid, petitioner no longer has any privilege to

refuse to testify.” —— App. Div. 2d —, —.

4 STEVENS v. MARKS.

That same day, as a consequence of his refusal to

waive immunity before the Third July 1964 Grand Jury,

petitioner was discharged as a police officer.

On July 22 he was again summoned before the First

June 1964 Grand Jury and put a certain question which

he refused to answer on the basis of his state and federal *

constitutional rights. He was brought before a judge

who directed him to answer the questions. He refused

to answer “on the grounds stated in the State and Federal

Constitution” and the judge found him in contempt. On

July 28, a hearing was held, at which petitioner, through

his counsel, contended that the waiver was invalid or,

alternatively, had been effectively withdrawn. In either

event his Fifth Amendment claim was valid under

Malloy v. Hogan, 378 U.S. 1. For it was agreed that

“there is no claim that this witness has been given

immunity.” * At the conclusion of the hearing, peti-

tioner was fined $250 and given 30 days in the civil

jail in New York City for that contempt. Petitioner

promptly appealed to the Appellate Division of the New

York Supreme Court. While this appeal was pending,

he sought and was denied federal habeas corpus. Appli-

cation of Stevens, 234 F. Supp. 25. The Appellate Divi-

sion dismissed the appeal, stating its belief that Regan v.

New York, 349 U.S. 58, was controlling.© —— App. Div.

* Malloy v. Hogan, 378 U. S. 1, holding that the Fourteenth

Amendment guaranteed a witness the protection of the Fifth Amend-

ment’s privilege against self-incrimination, was decided June 15, 1964.

* Petitioner’s counsel made the following statement: “May we

also have the record clarified, Your Honor. It is my understanding,

based on what was said here the last time in court before Your

Honor, ihat there is no claim that this witness has been given im-

munity. The claim is that he has signed a valid waiver and that

he refused to testify under it, and that is why Your Honor has found

him guilty of criminal contempt, is that right?” The court replied,

“That covers the situation.”

® Regan v. New York arose under an earlier version of the New

York immunity law, which conferred automatic immunity from

STEVENS v. MARKS. 5

2d ——-. The New York Court of Appeals denied leave

to appeal. —— N. Y. 2d —. This is the conviction

which is the basis of the petition in No. 210.

Thereafter, on September 28, petitioner was summoned

again before the First June 1964 Grand Jury. Once

again a question was put him and once more he refused

to answer, claiming his privilege which, as we have said,

was available to him under Malloy v. Hogan, supra, if

the waiver was invalid or had been effectively withdrawn.

He was brought before another judge who directed him

to answer the question. On refusal, petitioner was held

in contempt and fined $250 and sentenced to 30 days in

jail.” On January 11, 1965, petitioner was once more sum-

moned before the First June 1964 Grand Jury and refused

again to answer a question on the ground that it was

incriminating. He was taken before a judge and directed

to answer. On his refusal he was fined $250 and sen-

tenced to 30 days. While serving that jail term, peti-

tioner once again sought a writ of habeas corpus in the

United States District Court. The court denied relief,

indicating that it regarded Regan v. New York, supra,

binding authority. United States ex rel. Stevens v.

McCloskey, 239 F. Supp. 419. The Court of Appeals

for the Second Circuit affirmed. 345 F. 2d 305. It is

prosecution on anyone who testified before the grand jury. Regan

had, like petitioner, executed a waiver of immunity and later sought

to repudiate it. Unclear of his rights, Regan refused to testify

though ordered to do so. This court affirmed his contempt convic-

tion, refusing to consider questions raised as to the validity of his

waiver and the efficacy of his efforts to withdraw it. The Court’s

theory was that regardless of the validity of the waiver, Regan

was bound to answer the questions put to him: If the waiver was

valid and binding, then of course he must answer since he had

waived the right to refuse to do so. If the waiver was invalid,

then petitioner would have immunity from prosecution, and thus

could not rely on the privilege against self-incrimination.

7 This sentence was served.

IGE SLL SRL I RE NNT me ie

6 STEVENS v. MARKS.

this last conviction that is the basis of petitioner’s appli-

cation for a writ of habeas corpus in No. 290.

Both cases are here on writs of certiorari. 382 U. S.

809.

Not once in any of the hearings was petitioner told

that if he responded with incriminating answers, the

state immunity statute might preclude a prosecution

based on such answers. On the contrary, the Assistant

District Attorney made it clear that the view of the

prosecution was that petitioner had waived any rights he

might have had under the immunity statute:

“Q. And was it further told to you that it meant

that if you signed a limited waiver of immunity,

which required you to answer questions concerning

your conduct in public office, that what you said

would be taken down and recorded and that should

this grand jury vote a true bill against you, that is

an indictment, the testimony you gave could be and

will be used against you? Was that explained to

you?

“A. I believe it was, yes, sir.

“Q. And did you tell this grand jury you under-

stood that?

“A. That’s right.”

The Assistant District Attorney went on to say:

“Q. And do you understand further that regard-

less of what your lawyer may say or what anyone

else may say, that it is the contention of the People

that this is a valid waiver of immunity and that you

do not have immunity? Do you understand that?

“A. Yes, sir.”

As we read this record, petitioner was led to believe

that he could invoke his federal privilege against self-

incrimination only at the pain of losing his public em-

ployment; that to retain his job he was obliged to sign a

=

STEVENS v. MARKS. 7

waiver; and that should he sign a waiver he would

have no immunity in answering incriminating questions.

Throughout the various appearances petitioner made be-

fore the grand juries and in the New York courts which

held him in contempt, the prosecution consistently main-

tained that petitioner’s waiver was valid. And there was

never any suggestion that if, as petitioner contended, the

waiver were invalid or effectively withdrawn, he might

obtain a valid immunity from subsequent prosecution.

Here lies the difference between this case and Regan v.

New York. For after that case arose, New York

amended its immunity statute. Instead of conferring

automatic immunity on all witnesses who testify before

the grand jury, immunity is now conferred “only by strict

compliance with the procedural requirements of our

immunity statutes properly enacted ....” People v

Laino, 10 N. Y. 2d 161, 173. Section 381 of the Penal

Law, as amended in 1953," provides that in any bribery

investigation “the court, magistrate or grand jury, or

the committee may confer immunity in accordance with

the provisions” of § 2447. The latter section provides

that an investigating grand jury is among these “author-

ized to confer immunity” in a proceeding relating to

bribery, provided that certain procedural steps are taken:

(a) the witness must refuse to answer on the ground of

self-incrimination; (b) the grand jury must then be “ex-

pressly requested by the prosecuting attorney to order

such person to... answer; (c) the grand jury must

then order the person to answer; (d) the witness must

then comply with the order to answer; and (e) there-

upon “immunity shall be conferred.” Under these laws,

immunity is not automatically conferred “merely by tes-

tifying.” People v. Laino, supra, at 172. “Complete

*See Regan v. New York, 349 U. S. 58, 59, note 2 and accom-

panying text, for a discussion of the earlier version of that section.

8 STEVENS v. MARKS.

immunity from prosecution may be obtained by a

prospective defendant, or any witness, only by strict

compliance with the procedural requirements of our im-

munity statutes properly enacted ... or by virtue of

immunity provisions in our State Constitution ... .”

Id., at 173.

In the present case neither the prosecutor nor the

grand jury had any thought of conferring immunity on

petitioner. They tried to hold petitioner to his waiver.

Yet if he had gone ahead and testified and it were

established in a later prosecution that his waiver was

invalid, it seems that he would have been bereft of

any immunity under the New York law, since the re-

quirements of “strict compliance” had not been met.’

Accordingly, only if the petitioner’s waiver was valid

and binding was he bound to testify—at least until the

affirmative steps necessary to confer immunity were

taken. Whether or not petitioner could validly assert

the privilege against self-incrimination depends on

whether the waiver was, as he contends, invalid or effec-

tively withdrawn. Although the trial judge which first

found him in contempt ruled that the waiver was valid,

the Appellate Division considered that question irrelevant

in light of Regan v. New York.

Since, as we have seen, Regan is inapposite, we con-

clude that at the time petitioner was held to be in

contempt, he had—as a matter of federal constitutional

law—effectively withdrawn the waiver. When petitioner

was asked to waive his federally secured right to refuse

to answer the questions, he was informed that failure to

execute the waiver would result in the loss of his public

employment. Although it put petitioner to “a choice

® That immunity was never properly conferred on petitioner was,

as we read this record, recognized by petitioner’s counsel and by the

judge which first found him in contempt of court. See note 5,

supra, and accompanying text.

ARBRE IEMA AUR RE NRT AIR ES EI RN NOES RENE IA —

|e

STEVENS v. MARKS. 9

between the rock and the whirlpool” (Frost Trucking

Co. v. Railroad Comm’n, 271 U. 8S. 583, 593), New York

says that, having “voluntarily” waived his constitutional

rights, petitioner may not thereafter claim his privilege.

At petitioner’s first appearance before a grand jury after

having consulted with counsel, petitioner attempted to

do just that: he announced his intention to withdraw his

waiver.

Even were we to assume, without deciding, that a State

may constitutionally exact, on pain of loss of employ-

ment and in the absence of counsel, the waiver of a con-

stitutional right, we would be unable to find any justifi-

cation for denying thé right to withdraw it."° We hold

that petitioner’s effort to withdraw the waiver was effec-

tive, and that in the absence of an immunity provision

. Clearly made applicable to him, petitioner could properly

stand on his privilege and refuse to answer potentially

incriminating questions.

One final point remains. Although the courts below

did not consider the possibility, the briefs suggest that

petitioner might, quite apart from the statutory immu-

nity conferred by § 2447, have been given immunity by

operation of law. It is said that, as the New York courts

have interpreted the state constitution, a potential de-

fendant may not be compelled to appear before a grand

jury; any testimony given by him during such an appear-

ance may not thereafter be used against him. People v.

Steuding, 6 N. Y. 2d 214; People v. Laino, 10 N. Y. 2d

161. Thus it might be thought that this “automatic”

immunity resulting from petitioner’s appearance before

10 As for the suggestion that withdrawal of the waiver in mid-

hearing poses an administrative inconvenience, we only note that

there was no such inconvenience here. Petitioner had answered only

a few perfunctory questions at his first appearance before the grand

jury. He asserted his desire to withdraw the waiver immediately

upon returning before the grand jury.

10 STEVENS v. MARKS.

the grand jury makes this case precisely identical with

Regan. We cannot agree. We need not stop to deter-

mine whether the immunity said to be conferred here—

which merely prevents the use of the defendant’s testi-

mony or its fruits in any subsequent prosecution but,

apparently, does not preclude prosecution based on “‘inde-

pendent” evidence (People v. Laine, supra; People v.

Ryan, 11 App. Div. 2d 155)—constitutes that “absolute

immunity against further prosecution” about which the

Court spoke in Counselman vy. Hitchcock, 142 U. 8. 547,

586, and which the Court said was necessary if the

privilege were to be constitutionally supplanted. And

see Albertson v. Subversive Activities Control Board,

382 U.S. 70, 79-81. For even if the Steuding-Liano im-

munity were available to petitioner, he was led to be-

lieve—as we have already seen—that no immunity

provisions were applicable to his case.

In this sense the case is very close to Raley v. Ohio,

360 U.S. 423, where the existence of immunity was never

suggested to the witnesses, later held in contempt. In

that case the State Supreme Court held that the immu-

nity under the statute was automatically available to

the witnesses and advice of the investigating agency was

not necessary. But we reversed those judgments of con-

viction since what the State was doing was “convicting

a witness for exercising a privilege which the State

clearly had told him was available to him” (id., at 438),

and we went on to say:

“A State may not issue commands to its citizens,

under criminal sanctions, in langage so vague and

undefined as to afford no fair warning of what con-

duct might transgress them. Lanzetta v. New Jer-

sey, 306 U.S. 451. Inexplicably contradictory com-

mands in statutes ordaining criminal penalties have,

in the same fashion, judicially been denied the force

of criminal sanctions. United States v. Cardiff, 344

STEVENS v. MARKS. 11

U. S. 174. Here there were more than commands

simply vague or even contradictory. There was ac-

tive misleading. Cf. Johnson v. United States, 318

U. S. 189, 197. The State Supreme Court dismissed

the statements of the Commission as legally erro-

neous, but the fact remains that at the inquiry they

were the voice of the State most presently speaking

to the appellants. We cannot hold that the Due

Process Clause permits convictions to be obtained

under such circumstances.” I/d., at 438-439.

Raley demonstrates that the State may not substitute

for the privilege against self-incrimination an intricate

scheme for conferring immunity and thereafter hold in

contempt those who fail fully to perceive its subtleties.

A witness has, we think, a constitutional right to stand

on the privilege against self-incrimination until it has

been fairly demonstrated to him that an immunity, as

broad in scope as the privilege it replaces, is available

and applicable to him."’ This, it seems tc us, is the

teaching of Raley, and accordingly the Steuding-Liano

immunity—if otherwise applicable—cannot now be in-

voked to validate this contempt conviction.

Reversed.

™ The suggestion that we should remand the case to the New York

courts for a finding of whether or not petitioner was misled is, we

think, wide of the mark. A State must affirmatively demonstrate to

the witness that a valid immunity from prosecution is his before it

may hold him in contempt for refusing to answer questions that

would otherwise be incriminating. Whether the State has met its

burden must be measured at the time of the alleged contempt. A

declaration that there was a valid immunity uttered for the first

time on appeal would come too late.

| . agnatm ety: a ore A:

SUPREME COURT OF THE UNITED STATES

Nos. 210 anp 290.—OctToser Term, 1965.

James T. Stevens, Petitioner,)On Writ of Certiorari to

210 v. the Appellate Division

Charles Marks, Justice of the} of the Supreme Court

Supreme Court of New] of New York, First Ju-

York, County of New York.) dicial Department.

James T. Stevens, Petitioner,)On Writ of Certiorari to

290 v. the United States Court

John J. McCloskey, Sheriff of | of Appeals for the Sec-

New York City. ond Circuit.

[February 28, 1966. ]

Mr. Justice HarLAN, whom Mr. Justice STEWART

joins, concurring in part and dissenting ir. part.

Proper disposition of these cases is rendered more

difficult because of seeming confusion that has attended

them all along the line. In the courts below the signifi-

cance of an important New York statutory amendment

was apparently overlooked. This Court granted certio-

rari limited to a question which, in my view, the record

does not present and which the Court does not answer.'

The judgments below are now reversed on different

grounds never properly set forth by petitioner. With

this background, a good case could be made for dismissing

the writ as improvidently granted. However, I believe

briefing and argument have brought to the fore errors

sufficiently plain to warrant setting aside these judg-

ments, although my analysis differs from the Court and

' Certiorari was limited to the question whether a law is unconsti-

tutional which requires the discharge and bars the rehiring of any

public officer who refuses to sign a waiver of immunity and claims

his privilege against self-incrimination, 382 U. 8. 809.

GTI LG SLO, SIEGE EY IIT Re ee

2 ; STEVENS v. MARKS.

I consider that a remand, and not an outright reversal,

is called for.

It is common ground that petitioner cannot be jailed

for refusing to incriminate himself unless either he

waived his federal privilege against self-incrimination,

or immunity adequate to offset that privilege was con-

ferred upon him. Taking up the first possibility—

waiver of the privilege against self-incrimination—it

seems to me evident that petitioner was never asked to

sign, nor did he sign, a waiver of that privilege. What

the New York Constitution and the New York City

Charter explicitly require be signed, and what petitioner

did in terms sign, is a waiver of immunity from criminal

prosecution, that is, a waiver not of the federal privilege

but of the state immunity that may be granted to cir-

cumvent the privilege.» That a waiver of the privilege

and a waiver of immunity may both often lead a witness

to incriminate himself is no reason to blur these two

different legal concepts. A State in exacting a waiver of

the privilege should turn square corners; New York did

not ask for nor did it obtain a waiver of the privilege in

this instance, so that basis for justifying the contempt

convictions is out of the case. The only other basis is a

claim that New York has conferred immunity upon

petitioner adequate to replace the privilege.

*\N. Y. Const., Art. I, §6, requires “a waiver of immunity against

subsequent criminal prosecution” and the ie York City Charter,

§ 1123, requires that one “waive immunity from prosecztion.” The

document signed by petitioner stated that he waived “all Lcnefits,

privileges, rights and immunity which I would otherwise obtain from

indictment, prosecution and punishment ... .” N. Y. Penal Law

§ 2446 states that where any law provides that a person shall not

be prosecuted because of his testimony or that testimony he gives

shall not be used against him, that person may file a statement

“expressly waiving such immunity or privilege.”

2

i — . _ . . we — .

FP ROE NS ALPE MAIL PEO Re IRON O ETN NE ERS ES IRS RED ce a De ee ES

STEVENS v. MARKS. 3

Before turning to that issue, it should be noted that

there can be no reason to consider now whether peti-

tioner’s purported waiver of immunity was ineffective

or withdrawn. If the Court is right in saying that no

statutory immunity was ever conferred and that immu-

nity under the state constitution cannot now be relied

on by New York because of Raley v. Ohio, 360 U. 8. 423,

then it is hardly necessary to decide if this never-con-

ferred immunity was adequately waived or the waiver

effectively withdrawn. If New York did properly con-

fer adequate immunity and so offset the privilege, then

under Regan v. New York, 349 U. S. 58, it is irrelevant

at this stage whether petitioner has or has not lost the

benefits of that immunity through waiver since he is

obliged to testify in either event. Adequacy or with-

drawal of a waiver of the privilege against self-incrimina-

tion might sometimes be relevant at this stage, but no

waiver of the privilege was even attempted in this in-

stance as I have noted above. On this phase of the case,

it only remains for me to demur to the Court’s statement

that “we are unable to find any justification for denying

the right to withdraw” the waiver (p. 9, ante). New

York has the very deepest interest in uprooting and pun-

ishing misconduct by its officials; it also has a narrower

interest in having an investigation, commenced on the

premise of a waiver, not suddenly balked by the witness’

change of heart. It seems to me there is no federal con-

stitutional reason why a witness who has properly given

a voluntary waiver either of his privilege or his immu-

nity should not be held to it.

Turning now to the conferral of immunity as a means

of offsetting the privilege and justifying these convic-

tions, I agree with the Court that the pertinent New

York statute quite plainly is no longer an automatic

immunity statute and that it was not brought into play

4 STEVENS v. MARKS.

in this instance. While further consideration on this

score should not be foreclosed on the remand which for

reasons later indicated I believe should take place here,

People v. Laino, 10 N. Y. 2d 161, 218 N. Y. 8S. 2d 247,

seems fairly persuasive that this literal construction of

the statute is accurate.’ Disregarding the statute then,

the convictions can stand only if immunity adequate to

offset the privilege flowed from the state constitution

and if petitioner was not misled in his reliance on the

privilege. For reasons now set forth, I believe these

questions should be decided only after a remand to the

state courts.

As construed in Laino, the New York Constitution

gives automatic immunity only against use of compelled

testimony and its fruits, 10 N. Y. 2d, at 173, 218 N. Y.S.

2d, at 657, and the Court today leaves undecided the

question whether this immunity is sufficient to supplant

the privilege. While the reference to “absolute immu-

nity against further prosecution” in Counselman v.

Hitchcock, 142 U. S. 547, 586, may point toward a nega-

tive answer, I agree 2 that the question ought not be de-

cided until it is necessarily presented after a full briefing

and argument by the parties. It is perhaps reason

enough for postponement that the negative answer would

perforce invalidate one or more federal statutes which

’In Laino the New York Court of Appeals stated that immunity

under the state statutes could be acquired only “by strict compliance

with the procedural requirements ....” 10 N. Y. 2d, at 173,

218 N. Y. S. 2d, at 657. N. Y. Penal Law § 2447, governing the

procedure for conferring statutory immunity, provides that in the

case of a grand jury, the grand jury must be “expressly requested”

by the prosecutor to order the witness to answer and the grand

jury must give that order; there appears to have been neither request

nor order in this case. That courts might “estop” the prosecutor

- from later prosecuting in these circumstances should not be taken as

the deliberate, assured grant of immunity the Constitution requires.

STR! RE TIS

. ee eM ee Re ee Te Sadr EY iii

DEEL RB LED OP a ee aba tyke LF PRR SPOOR EAS i ES 7

STEVENS v. MARKS. 5

protect only against later use of compelled testimony.*

‘In addition, this Court has recently extended the Fifth

Amendment to the States, Malloy v. Hogan, 378 U.S. 1,

and abolished the “two sovereignties” rule, Murphy v.

Waterfront Comm’n, 378 U. S. 52, so that an expansive

reading of the privilege could have a far more serious

impact than was true in the days of Counselman.’ In

all events, the question need not be reached if Raley v.:

Ohio, 360 U. S. 423, governs the instant case.

As I read Raley, it holds that the State may not lead

witnesses into believing that no immunity provisions are

applicable and then, when the witnesses stand on their

privilege, hold them in contempt on the ground that

immunity provisions supplanted the privilege. In this

case the Court apparently believes that statements of

the prosecutor and trial court led petitioner to think

that no immunity provisions applied to him even con-

tingently; if this is so, then I would agree the State can-

not now rely on the state constitution, or the state stat-

ute for that matter, to negative petitioner’s privilege.

However, there are no findings on how petitioner under-

stood the statements made to him and they are certainly

susceptible to quite a different interpretation. It may

well be that the State meant, and was understood by the

petitioner, to convey only that it believed petitioner’s

waiver of immunity to be valid and irrevocable so that

it would attempt to prosecute him on the basis of any

testimony he gave. On this reading, it is quite possible

that both the State and petitioner believed that adequate

immunity provisions were generally applicable to the

4 See, e. g., 49 U. S. C. §9 (1964 ed.) See generally Murphy v.

Waterfront Comm’n, 378 U. S. 52, 104, n. 6 (concurring opinion

of Mr. Justice WHITE).

5A number of States appear to provide immunity no greater

than that implied by the New York Constitution. See, e. g., Ariz.

Rev. Stat. Ann. § 13-384; Conn. Gen. Stat. § 12-2.

een — ‘ epee OLE BIOTA ka

eee SES Ee ESN PEAR AEE TO I Ee

6 STEVENS v. MARKS.

extent of supplanting the privilege and that petitioner

would be shielded at a later trial if the State there proved

to be wrong in its views G.: waiver.’ If so, and assuming

the state constitution does in law provide adequate im-

munity, then petitioner was obliged to testify under

Regan and was not relevantly misled.’ The present rec-

ord was not formulated with regard to the Raley prob-

lem, that issue was not briefed in its present form, and

it seems to me wrong to decide the point without a

remand.

I would vacate both judgments and remand the case

to the state courts * so the State may there try to estab-

lish that apart from a possible waiver adequate immunity

was conferred, and so that petitioner may try to show

that he was misled on this score.

®It should be noted that nothing in the record indicates that

petitioner raised the Raley argument in the lower courts, and that

case was not even cited in his’ petitions for certiorari.

7 In a footnote, the Court appears to announce as a new and dis-

tinct principle that “[a] State musi affirmatively demonstrate to the

witness that a valid immunity from prosecution is his” before over-

riding the privilege (p. 11, n. 10, ante). Reading the words “valid

immunity” literally, the statement is simply inconsistent with Regan.

If instead the Court means that immunity—albeit contingent on the

invalidity of a waiver—must be “affirmatively demonstrated,” re-

gardless of whether the State misled the witness and regardless of

whether the witness well knew he had contingent immunity, then

I disagree with that proposition which is not supported by Raley.

5 The case to be so remanded is No. 210; No. 290, which orig-

inates in the Federal District Court as a habeas corpus suit should

be returned there to await the outcome of any further state

proceedings.