Amicus Curiae Brief — Zicarelli v. New Jersey Comm'n of Investigation

Supreme Court brief1972

Ask Donna

What actually matters in this document.

Text

eS , ne E ROBERT SEAVER, vem Speen

DAN ‘v IN THE | *f

» Supreme Court uf the Hnited States

OcrouER TERM, 1971 “s

Nl Ney 6p, y

; ae ae

bd ode 3

Sd OSEPH amon Pane ppellant,

\ New Jzrsgy State Cocaasston OF Levusmaarion,

wor ENG nae De icicass :

= \ On’ Appeal from the Supreme’ Court of the . j “5

‘ State of t New Jersey or

ua iy : ee a ee

BRIEF FOR THE. NATIONAL DISTRICT santiascy

ASSOCIATION AND AMERICANS FOR EFFECTIVE

.LAW ENFORCEMENT, INC., AS \AMICI CURIAE IN

/ SUPPORT OF PORTETON OF APPR EE ne

"" ‘Rosgrt G. Dixon, Jn

x ry 4 ‘Washington, D. C.

is Attorney Joe Amici Cuiiae

; pet ee ; .

s $e. : .

5 . j ae?

. . . ‘ e

4 f .

H ¥ f ‘ Rim - q

4 ee : ; ‘ “ Be ’ a, 4

. ° . Ld . . fg

y ’ ‘ , ,

. ° . ° .

wie ’ 7 ;

I. Nothing in the origin, early history, ‘in purposes,

of the privilege against compulsory self-incrimi- .

. F&tion, now embodied in the Fifth Amendment —

_ and: made applicable to the states by the Four-.

teenth Amendment, supports the proposition that —

Ja witsiess immunity statute can serve the pur-

poses of the privilege only by_operating as a total ?

pardon for any offense relate to the: commpenod B

ORT. i go oo 5 di a Ferg Ke Senin oe et iyeeee Jl

A. Seventeenth aoe NE Origins a --- It

iB. -Reception of the Privilege in America ...... 17

I. Pre-Counselman v.. Hitchcock cases construing

_ statutes or immunity grants suggest that abso- :

lute immunity is not required .:.......5..¢.... 19

AL Pre-Nimeteenth Century Examples ......... Me

B. Nineteenth Century American Practice iNinay _ ae :

III. Cownselman holds that a limited, use ‘restriction .

statute, immunizing only direct use of the actual ae

. testimony, \s inadequate. to supplant. a claim of.

the Fifth Amendment privilege against compul- em

gpry, se Mcrimination because .it-does not: bar

ase of the derivative ‘‘fruits’’ of the testimony ;

‘no full use restriction immunity | statute was. be-

_» fore the Court although the main body of the § ~

_ Court’s opinion indicates that such a ‘statute ~.

would be constitutional; the Court’s. concluding’

lines about the constitutionality of an absolute .

_ immunity statute is a beet a dictum if ‘read as

, an exclusive requirement - ie ge wan got hens son yo

: .

- Na fe. ?. oe , : as fo

. ‘ : : Tr ? ‘

‘ S oa i Contents Continued

i | oe « Page

. A: Nature of the Statute under Litigation ..... 27

* _ B. Litigation and Briefs in Counselman bidet a

C. Counselman Opinion .............. siseseee Ol

IV.: The ecnshaion that Counselman doe8 not require

' absolute immunity is supported not-only by his-_.

tory and logic, but also by British = nee a

practice. Step ee bee 4 Ue a aeons ss skinens as Jemenee 37

v. “The spilstibidiciaadera ni efficacy of full use re-

striction immunity under the Fifth Amendment

‘is supported “strongly by, recent cases of this

-~ Court; and these cases recognize that*the state-

tient in Counselman on absolute immunity was -

at best a dictum on an issue which has not been

presented. to this Court until now ...........-. 40

- VL Full use amieity4 is iasctaiied with the devel-

'. oped purposes of the Fifth Amendment and our

exclusionary rules in other fields, and is urgently

needed for effective policing of the growing cate-

2s ; gories of crime characterized by a ‘web.of inter-»

locking illegal agreements among. many people,

: Bate _ such as “white collar” crime and organized crime 48

% A. ‘Immunity and the Policy of the, Fifth Amend- .

eather ieapitnentationsvotuiderations, Fiat

toward utilization of full use restriction statutes

rather than absolute immunity statutes ae

A. Practical Problems and Perspectives in Im-

plementing Immunity PaaNd 6 AKAMA Sw Ea 8s oO 57

B. Effectiveness of Full ee Restriction Immu- es

. nity ¥ o.dt-0 05 OOM OES 6 8 Mee Ob BES Ob OS Ceceewee 60

C. Tinmanity i in Intrajurisdictional Context —-666

oe? .

Ss -: or Nag Ra é a“ \ we, 7 :

. '‘ . . aoe .

. i Q&. <

’

“Contents me Ones so _ lii

. S&S.

VIE. A ll use restriction : immunity formula, unlike’

absolute immunity formula, could open the

way to extending the jmmunity technique to re-

luctant witnesses called under defendant’s Sixth —

: Amendment me to pee? ee

‘Conctysion

| , CITATIONS’

CAsEs:

Adams v. Maryland,.347.U.S. 179 (1954) oensveeusees 40, 65

Albertson v. Subversive Activities Control Board, -_ -

= SSS, TO GASES) nb vases cc cus cos Senwescsbwncened 46.

Alderman v. United States, 394 U.S. 165 (1969) seceee 43°

Barenblatt v. United States, 360 U.S. 109 (1959) ..... 56

Bishop. Atterbury’s Trial, 16 State Trials 323 (1723) . 20

Brown v. ‘Mississippi, 297 U.S: 278 (1936) ...0.1..... — —«48

‘Brown v. Walker, 161. U.S. 591 (1896) .......... 6, 8, 22, 36

California v. Byers, 91 S.Ct. 1535 (1971):........... 63, 67

Charleston v. United States, No. 71-1787, June 16,1971 75

Commonwealth v. Emery, 107 Mass. 171 (1871) .... 24, 26, .

* 32, 33, 35, 37, 50, 52.

‘Counselman ¢ v. Hitchcock, 142 U.S. 547. (1892) . cS "19, "921,

-- 24,26, 27, 98, 30, 31, 34-37, 38, 39, 46, 50, 51, 75

In re Counselman, 44 F268 (0. C. N.D. Tl. 1890) . 0 Ol

. Cullen v. Commonwealth, 24 Gratt. 624,°633 (Va. 1873) 26,

| 32, 33, 37, 50

“Deutoh 1 V. United States, 867. U. S. 456 (SOGEY Zens nce d 56

. Earl v. United States, 361 F.2d 531 (D.C. Cir. 1966), .

pet. for rhg. en banc, 364 F. 2d 666 ( Tn) cert, den.

Be Rides OE CARE bb nese 6 TRG wecee sss ca00 ve saeee 77

Gardner v. Broderick, 392 U.S. 273 (1968) ....... So 44.

Garrity v. New Jersey, 385 U. S. 493 (1967)...+....... 44

. Gibson v, Florida Legislative Investigation ana a

7 "BTS WB. GBB CISGS) obec ccc ctaca ect teecccccy 56

' Re Ginsberg, 38 D.L.R. 261, 264 (1917) eeeyat ie Tre 39

‘Gold v. Menna, 25 -N.Y.2d 475, 307 N.Y.S.2d 33, 255 N. K.

et Bd BBG (IDOE cee oc ecdavcccas vensbecnvccts 72

- Grossé v. United States, 390 US. 62 (1968) * egg

63, 74

Wissel v. United States, 390 US. 85 fey ne aT

Heike v, United States, 227 U.S. 131 (1914y.......... aa

Page |

iv = . | Conterits Continued |

; eT 2." Page

Herlicy v. United States, No. 71.4788, June 16,1971... 75

‘Hiwelfarb- v. United States, 175 F.2d 924 (9th Cir.

1949), ‘cert. den., 338 U.S. 860 (1949) :.........5. 71-

* Hirsch v. State, 8 Baxt. 89 (Tenn. 1874) .:...+...... 23 °

Kastigar v. United States, 440 F.2d 954 (Sth Gir. 1971),

cert. granted, 39 U.S:L.W. 3511 (U8. May 17, *

TU is fen Ses seer ones 4 ots eats eens nneses 6, 50, 75

' In the Matter of Kinoy, No. M-11-188 (S.D. N.Y. Jan.

te © Oe MOTD gcc c ay ono kee ane bruset ites cous bias: 75 .

In the "Matter of Korman and Likas, No. 71-1328 (7th:

Cir. May 20, 1971) &.... A was beatae eeeeseas 75.

Lord Chancellor: Macclesfield’ S Trial, 16 State Trials

AE AERO) och ee eee es oe wh ea sees ts 20

Mackey v. United States, 91 s. Ct. 1160 (1971). 61, 62, 63, 74.

_ Malloy v. Hogan, 378 W. S.1 (LOGE) acct esc tsecess «s 40, 41

_ Mapp vé Ohio, 367 U.S..648 (1961) ............ Seu 43, 65

‘ Marchetti v. Ufited States, 390 U: S. 39 (1968) wee 47, 61,

62, 63, 64, 74 |

Miranda v. ‘Arizona, 384 U.S8 (1966) weeeeeees 9.10, 43,

64, 65, 70:

Morrison v. United States, 365 FV4d 521 (D.C. Cir. 1966) 17

Murphy v. Waterfront Commission, New York Harbor,

378 US. 52 (1964) eer 8, 40, 41-43,:47, 53, 61, 63, 66, :

68, 69, 74, 76

Norria. v. Alabama, 294 US. SBF (1935) 2. voce cones 65

Panhandle Oil Co. v, State of Miss. ex rel, Knox, 277.

ie. Te)! er ee er eer re rer rere re 43.

" People v. Kelly, 24 N.Y. 74 (1861) ..:.-.23, 27, 32, 35, 36,52

. People v. La,Bello and Piccirillo, a4 N.Y.2d '598, 301 |

N.Y:S.2d 544, 249 N.E.2d 412 ’(1969).. peeeeeeues . 72

-In re Phillips, 19. ¥F.Cas. 506 (No. 11,097) (D. Ya. 1869) 27

Piccirillo v. New York, 400 US. 548 (1971) .......54, 57,66, ©

"68, 70-73, 1£

. Rex. v. Simpson, 3 D.L.R: 355 40.4.) (1943) .:....... 3s

Rex v. Warickshall, 1 Leach’s Crown Case 263 (1783) ..

Russell v. United States, 369 U.S. 749 (1962)°........

Schenck v. United States, 249 U.S. 47 (1919) ....... 16

Shapiro, v, United States, 335 U.S. 1 (1948) ..30....6. 72

Silverio v- Municipal Court,. 247: N.E.2d 379, cert. den, _

OG 5 OIE CID bs bao eas ba chs ccesse sone es 45

~* - Simmons v. United States, 390 v. 8.377 (1968) . seheens , 46

~ - Spevack v. Klein, 385 U.S. 511 (1967) ....2..... 0... 45°.

- State v. Nowell, 58 N.H. oe ere 25, 26, 32, 33, 37, 50, 52

Contents Continued =.= -° ov

: | _, _ Page

State v. Qharles, 13 Ark. 307 ( 1°.) a ee wie 23.

Stevens v. Marks, 383 U.S. 234 (1966) Velweexageveses 46°

Stewart v. United States, 440 F.2d 954 (1971), cert.

. granted, 39 U.S.L.W. 3011 (U:S., May-17, 1971)..

50,

Ti re Strouse, 23 F. Cas. 261 (No. 13,548) (D. Nev: 1871) 26

Swain v. Alabama, 380 U.S. 202 (1965) .............. 65

Sweezy v. New Hampshire, ‘354 U.S. 234 (1957) ....... 56

Tere v. Ohio, 392 P/.S..1 (1968)...............ee ane. 4

Uniformed Sanitation _Men Association v. Commission-

er of Sanitation, 392 U.S. 280 (1968) ....... ewes 440070

Uniformed Sanitation.Mgn Association, Inc. v: Commis- |

sioner of Sanitatiofi of the City of New York, 426

_ F.2d 619 (2d Cir. 1970) ..........,.4... ye eeessa 36, 45

- United States v/Blue, ‘384 U. S. 251 (1966) wceeeeee.. 46, 74

United States’ v. Brown, 24 F.Cas. 1273 (No. 14,671)

(Ty, OTe FIT) ic caw ceten care bene eth cae Seek es

United States v. Freed, 91 S.Ct. ce (1971) ..... 47, 66, 76

United States v. McCarthy, 18 F . 87 (C.C.S.D.N.Y.

a |’; < ) A en ea 26, 27.

United States v. Harris, 39 US.L.W. 4835 (U.S. June |

| Se BOER: see ea see ed ow oo edp Melee ee sehen eeesees 4

United States v. Standard: Sanitary Manufacturing

Company, 187 F. 232 (C.C.E.D.Pa. 1911) ....,... 76 :

United States v.. Williams, 28 F.Cas. 670 (No. 16 717)

(C.C.8.D; Ohio 1872). 22... 00. .cce tec digeccncees

Uphaus v. Wyman, 360.U.S. 72 (1959) .......... ®.. . 56

Washington v. Texas, 388 U.S. 14 (1967) ........ eee TT.

Watkins v. United States, 354 U.S. 178° ¢1957) ee ae 56.

. Weeks v. U. S., 232 U.S. 383 ¢: 0) eererean, “aee 43 -

In re Willie (United States.v. Burr); 25 F.Cas. 38 Ci C.

Var. 1807) .. ig. no os ore cig te ccc g ec cecccncte gs 18 }

~Wong Sun v. United States, 371 U. S. 471 (1963) ...2.. 66

In re Zicarelli, 55 N.J. 249, 261 A. 2d 129 (1970) .. 2, 50, 51-. |

7 o

CoNSsTITUTION, STATUTES:

United States Constitution: ee os a

First Amendment .:...5....... Lee leeeeee ee 9, 16, 49

P Fourth Améndment............ vues pak yauen 43, 65, 75,

‘ifth Amendment ...,............. eaede 6 im. passim

Sixth -Amendment ..:............. Steeeee ee 10, 76-77

Fourteenth Amendment peewee eaees Pee re Terres 6, 78

. + ‘

BHO

vi sw Contents Continued ee |

Page

"Federal statutes : ; . . "

Immunity Act, 11 Stat. 155 (1857) paesteeeseces 29, 52

Immunity Act, 12 Stat.. 333 (1862) ............. .29, 30

| Immunity Act, 15 Stat. 37 ‘(1868) (RS. 860) . 7, 28, .

30, 31, 33, 34, 36

Immunity, Act of 1970, 18:U.S.C. §§ 6001 6005 . . 8, '36, |

| 61, 53

Immunity Act, 27 Stat. 443 (1893) sees ‘asetnae OF

New Jersey statute: | - | :

- NBA. 52: OMT oli. be cence senses ca

; British statutes: = = * :

Air Force Act of 1955, 3&4 Eliz. 2, C. 19, § 135 ae

Army Act of 1955, 3 & 4 Eliz. 2, ¢. 18, $135 0.020. -

cir phe ike Act of 1890, 53 & 4 Vict., e. 71, § 27 ;

| » | rr rere Se oe eee ey ny Ter ere ere g

. ~ Lareény Act of 1861, 24 & 25 Vict., c.96 . 38

Larceny Act of 1916, 6 & 7 Geo. 5, ¢. ,§ 43 8513). 38

Representation of the People Act, 12, 13 & 14 Geo.

* 6, 0. 68, § 123 (1969) wocccs a Secccass Seeeeewas 38 .:

_ Theft Act of 1968, ¢, US) eS

- Canadian statute: . | eer

Can. Rev. Stat., C.. 207, 4 eee ee er ... 39

OTHER Avutiionrrms: y | |

Brief for: Appellant (Carter’ s Brief), Pearman v.

Hitchcock, BAD Ti. ORT CANS) oss ics ses cai 32

Brief for Appellee (Atty..Gen. Miller and Lambertson), _.

-‘Counselman v. Hitchcack, 142 U.S. 547 (1892) . 32

Brief (Suppl.) for Appellee (Asst. Atty. Gen. Parker

and Lambertson), Counselman v. Hitchcock, 142

U.S: 547 (1892) Oe oe ee eee rere 33

Comment, ‘‘Scope of Taint under the. Hxclusionary e

_ Rule. of the Fifth Amendment Privilege Against

~’ Self-Incrimination,’’. 114.0. Pa. L. Rev. 570 (1966) - 65

Congressional] Globe ............6.2... dstuvey eats 28, 29

_ Cross, R,, Evidence (1958) ..... Geeta L4 baw eee ees A 38

Dixon, “The Fifth Amendment and iedeval Taman

Statutes,’’ 22 Geo. Wash. L, Rev. 447 ‘and 554

(1964) halve ssxusaeleces eee ee 28,71.

ie}

~.* | emt Continued Poe e. vii |

: Edelhertz (National Institute of Law Hinfneumaat and ~

Criminal Justice); The Nature, Impact and Prose-

cution of White-Collar Crime (1970) ..........2. 53

. Franck, ‘‘The Myth of Spevack v. Klein,’’ 54 A.B Ad -

970 OS a xc cass cs cose e ese ee ise ceesees 45

i Friendly, ‘‘The Fifth Améndment Tomorrow : The

| Case for Constitutional. Change,’? 37 U. Cin. L. |

. Rev. 671 (1968). 2... 5s. pyc cess ccencns Peeters — 49

Hearings, Permanent Sibcoron Investigations, Sen- —

ate*Comm. on Government Operations, 91st Cong., ae

2d Sess. Pt. 24.(197O) 2. ce cute cece ce cceccecades "55 -

7 Hearines on Immunity, Subcom. No. 3, House Comm. |

on the Judiciary, 91st Cong., Ist Sess. (1969) . 54 .

Hearings on- Measures Relating to Organized Crime,

Senate Subcom.,on Criminal Laws and Procedures,

. 91st Cong.; Ist Sess. (1969) ..-...scccc cee ceccces 76

- H.R. Rep. No. 91-1188. 0n Federal Immunity of Wit- .

| K nesses. Act, 91st Cong., 2d Sess. (1970) .......... 76

| Levy, Origins of the seis Amendment eee. veges bay aay

Cee | 14, 16, 17, 18, 20,22

D> ay sD he MADR TANG hoes oe Werte tas Ate wan tne atk we Sos OF

Mayers, Shall We Amend thie Fifth Amendment? (1959). 12,

14, 17, 18, 49, 75

Book Review of Ma cere “Shall We A nd the Fifth a

Amendment?, 9 J. of Pub. Law 214 11960) ictuce “0. ;

Mayers, ‘The Federal Witness’ Privilege Against Self-

- Inerimination: Constitutional or Gommon-Law ?,”’

OJ. OF Teg; Ot. TOF IGG) «cece sacses wan ses . 18

McCormick, Handbook of the Law of Evidence (1954) ,75

| o4 McCormick, ‘‘Law of the Future: Evidence,’’ 51 Nw.

2" @, “Es Rev. BIO TAO) Stas Gecwelangh ss nsasedees » 49

| ° McKay, ‘*Self-Incrimination and the New Privacy,””

| | _ + 1967-Supreme Court Review 193 ..............+. 36 a

. McNaughton, ‘‘The Privilege Against Self-Incrimina-

uo Hee tion,” 51 J: Crim. L. C. and P.S. 138 (1960) ...... 49

~~ National Commission on Reform of Federal: Criminal |

Laws, Warking Papers, ‘Comment on Immunity = ~

Provisions”? (Dixon), vol. 2, 1405 (1970) ....... 36, 37

National Commis sion on Reform of Federal Criminal —

- Laws, Final\Report (1974): ............. Yesteeses O°”

N.Y. Times ..... ci halweadeey benuiees oipeeea ee 54

S. Rep. No. 21-617 ‘on Organized Crime Control Keto of

~~. 1969, 91st canes Ist Sess. (1969) - eh ae eds veee 6. |

viii = Contents Continugd ;

| | ’ Page ©

President’s*Commission on Law Enforcement and -Ad-

ministration of Justice, The Challenge of Crime m

a Free Society (1967) ..........6. cei eee “tees -

Washington WOE oe cous staeceenes oc eeseeecustetsye Oh

Wendel, ‘‘Compulsory Immunity Legislation and the ‘5 |

Fifth -Amendment Privilege:. New Developments ~“23)

and New Confusion,” 10 St. — U. L. J. 327...”

(19GB) one See c ete ccc ees ¢40 Seduan seunen 28

Note, 72 Yale L. J..1568 (1963) o.. 0.2. c eee ee eee 28

8 Wigmore, Evidence (McNaughton rev. 1961) . oaces Lay 20,

22, 39, 49, 92, 67; 41D

“oOo

IN THE

| Supreme Court of the United States

_OctToBER TERM, 1971

ON 7 . we)

No. 69-4 | ,

_ |

- JosepH ARTHUR ZICARELLI, Appellant, : {

| | \ nn cee oe]

LN EW J ERSEY Stare COMMISSION OF INVESTIGATION, .

ape |

On Appeal from the Neti Court of. the

State. of New Jersey A

res

BRIEF FOR THE NATIONAL DISTRICT ATTORNEYS|

_ ASSOCIATION AND .AMERICANS FOR EFFECTIVE .

LAW ENFORCEMENT, INC., AS AMICI CURIAE IN -

SUPPORT OF npaaslasa al OF APPELLEE : ;

i ,

This brief is filed with the written consent ‘of the

parties, pursuant to Rule 42.2, Revised Rules of the

Supreme Court of the United States. It supports the

Appellee’ s position: and us ruling below of the Su-

" saa na To ae er a a eee ee

: . .

-* @ .

| a ;

7 preme Court of Ne ew Je ersey in In Re Z icarelli, 55 N. J.

_ 249, 261 A. 2d 129 (1970), on the central issue of the

‘required scope of witnessimmunity. ‘That position is—

that ‘‘use restriction’’ immunity, as distinguished from

‘‘absolute’’ or ‘‘transactional”’ immunity, isa consti-

tutional means to compel testimony after a. chaim of

' the prices. against Se aory self-inerimination.

- ". . INTEREST OF AMICI CURIAE.

A. The National District Attorneys Association is:

a nonprofit, nonpolitical, tax-exempt corporation com- .

_. posed of approximately 4,000 members representing all

50 States. The purposes of the National District At-

torneys Association are, inter alia, to improve

facilitate the administration of justice in the :

States and td promote the: my of law and legal

institutions. |

To sfectuate these aims ‘the National District “at?

torneys Association for many years has. utilized. an

_ Amicus Curiae: Committee to. file briefs in cases of .

‘national importance in’ the United‘ States Supreme

Court. We seek to make known the views of’all prose- .

; * ” eutors in America and to bring. before this Court their

_ position on’-matters affecting -the discharge of ° the |

‘duties of prosecutor.

Crime in America has grown te include an ramet a

mobile and scientifically-equipped organization. To

meet the coordinated power of this insidious segment

of our’society, which segks by unlawful means to ex- .

-ploit its. fellow citizen,. the prosecutors of America

- must avail themselves of every available law enforce-

ment technique, including the. immunity statute tech-

_. nique, and utilize the advantages of sooperepian and

fe coordination open, to them. ;

‘

- Over the past five years, this Association has sought 3

and received this Court’s permission to. file Amicus a

Curiae briefs in criminal cases, with pervasive national

significance. _ F ee end .

| The present issue. is eandily senpoichaasl thee! ‘‘imi-

‘munity bath’’ of absolute immunity. versus the exclu-

- sionary rule of use restriction. This issue poses a con- -

flict between two important legal -principles—the fair

trial right. of compulsory process for both parties, and.

the privilege. ‘against compulsory - self-incrimination.

We feel that a rule requtring full use restriction, and

only such a rule, will - ‘protect both of these oo

‘principles.

The benefit ta, law ‘hicianiadals, federal, and

~ loca-which would accrue from use immunity is of.

maj i importance. | I The criminal of today, especially |

the organized crime violator, is often engaged in many

forms of undercover illicit activity, based on a ‘web

of interlocking agreements. Because there is little

‘hard’? evidence,. interrogation, techniques are essen-

“tial. If the plea of+self-incrimination ean only be .

countered with an absolute immunity. statute; a gra-

tuity to crime will accompany each immunity grant...

All prosecutions in any jurisdiction which are related

. to the testimony will be barred, even if. independent,

untainted evidence exists. - Governments may well hesi- .

tate to pay .this high price for yet-to-be-acquired evi-

‘dence of uncertain value, thus: effectively blocking

.many important, even vital, investigations. “Fulj use -

restriction immunity gives/full protection to the wit-

- ness without raising the. yao of an immunity bath.

The familiar exclusionary rule should be the standard,

“not the —— of absolute immunity. ; o

in the cases of Terry V.

“It is this interest, we respectfully: submit, which

pi saalenes us to seek the Court’ 8 indulgence in Sing the

3 instant brief. .-

B. Americans for Effective aw Enforcement, Ine.

(AELE) is a national; not-for-profit, nonpartisan; ae

- nonpolitical organization incorporated under the laws

of the State of Illinois. AELE has received a tax —

exempt ruling from the Internal Revenue Service -as

an educational corporation. As stated in its bylaws

the purposes of AELE are: (1) To explore and con- -

sider the needs. and:-requirements fr the ‘effective . -

enforcement of tle criminal. law; (2) To inform the.

public of these needs and’ “Feqtirements, to the end

that the courts will administer justice based upon a . -

due concern for the general welfare and security of

law ‘abiding-vitizens (3) To. assist the police, the prose-

‘eution and the courts in promoting a. more effective

and fairer administration’ of the criminal laws. .

AELE has appeared in this Court as Amicus Curiae .

: . Ohio, 392 US..1 (1968); Hill.

v. California, 91 S.Ct. i106 (1971), and United States .

Vv. Roosevelt Hudson a lame 39 ae S.L.W. 4835 ics S.

_ Sune 28, 1971). 7

The interest’ of AELE is in peeeintiias the con- °

~ cern of the:average citizen with the problenis of crime

' and with police effectiveness, We seek to articulate .

- this concern to the Court in order that the rights of

the law abiding citizens of this country to be reasonably

- free from criminal harm may: receive due consider- he

\etton, | ;

\The instant case is, we ‘beliorks one “of vital signifi.

: ‘ cance to law enforcement and to the law abiding citizen.

aC Its —— to the citizens Ay! this 3 country becomes ms

ee | A ie

obvions when we. éonsider the pervasive nature of ‘the

influence of organized crime on. the daily | lives of

all of us—rich and poor, black and white. The prob- °—

lem has been eloquently phrased in the recent mopar A

ota federal crime commission :

ao: a. te many. ways organized ¢ crime is the. ‘imaet: sin-

_-@ ister kind of crime in America.‘ The men who

control it have become rich and powerful by en-. -

couraging the needy to gamble, by luring the

troubled to destroy themselves with drugs, by ex- .

_ torting the profits of honest-and hardworking busi-

nessmen, by. collecting usury from those .in finan-

oppose them, by bribing those who are sworn to

cial. plight, by maiming or murdering those who.

destroy them. Organized, crime is not merely a

few preying upon a few. In a very real sense it

is dedicated to subverting: not only American in- -

stitutions, but the very degency and integrity that

.are the most cherished attributes of a free pociety.

* Grants of immunity in’criminal cases han been pri-

; marily aimed at undeymining the structure of orga-

nized crime, or of business crime (e.g., antitrust). The

use restriction of immunized testimony, contended for

- “@

herein, will make_an immunity grant one of the most.

- potent ‘weapons ‘available to the governnient against

“group crime. It will permit the maximum effective

use of the immunity concept without creating an ‘“im-

munity bath,’’ and also will fully protect the witness ‘

against self-ineriminating use of his ccwieceeag

ee Prt + these reasons’ AELE ‘respectfully submits that, :

"At has ;

a valid — in the instant case.

1 President’ s Commission on Law Enforcement and Administra- -

fion of Justice, The Challenge of Crime in a Free Ronit. 209

(1987). ; 2

a .

is QUESTION F PRESENTED art

“Although the parties prese t ‘several issues, ‘the

- amici curiae address thémselves only, to the following —

38 constitutional question which is base. S: the instant. . |

“ease and. to. others : *

“Consistent: with the Fifth bona Fourteenth: Ammend- :

Me -. ments, can a-witness”claim of the privilege against _

: compulsory oe be overcome by an-

~~ Immunity statuté which bars use of the compelled

. . testimony. arid any derivative fruits, but does not.

“grant absolute immunity against- prosecution for.

all offenses related to the compelled —

SUMMARY OF ARGUMENT.

" ‘Since 1896 it has been an established principle of.

~Kmenionin constitutional . law that a witness’ claim of

the privilege against compulsory self-inérimination

- may: ‘be overcome‘ by an immunity statute, and testi- '

“mony may bé compelled; ‘because the Fifth Amendment

is concerned only with’ self-incrimination, not, self-.

‘infamy. : Brown v. Walker,.161.U.S. 591 (1896). ° The ..

- only ‘matter in dispute is the scope of the immunity

~ which must. be offered.in order to remove ‘the element *

_ of. inerimination and thus provide a constitutionally

ee adequate substitute for the right of silence which other-

~ Wise attends a proper claim of the Fifth Amendment. age

"As a matter of logic, and. actual practice-in thé Eng-

+ speaking world,sit is possible-to ‘distinguish three

ypes of immunity: (1): prohibition of direct use of . —

* the ——— cont sl ae i imimunity) ; @) ae a

“2 Bee, CG». Bioware WV, United States, "Kastiyar y- “United States,

440 F. 2d 954 (9th Cir. Pe cert.. granted, 39 US.L.W.. $511

Or. uh 1971). vey ¢ hae , pac

~~ a be x hak

-9 : bia ee fo

¢ ‘ . . ‘ rg S

3 of direct; use of the testimony and any derivative fruits 2

(full use immunity) ; (3) prohibition of prosecution «-&

- for.any transaction related to the compelled testimony | 4

_(absolute‘or “transactional” immunity). | :

-s ., The first type, limited use-immunjty, was s quite com- f

‘mon in ‘federal and state practice in this country dur- .

ing most of the ninetcenth century, and is. still the ;

primary reliance i in Canada and in England. However, ee ‘1 -3

_as it.came to be perceived that the compelled witness ~ |

Es could still suffer a spécies of ‘self-incrimination by fur- _ 2

~-nishing clues to’non-immunized evidence, doubts-arose— ~~

concerning the constitutional adequacy of such. a’stat- -

ute. A federal limited use restriction statute, R.S. 860, -

was nullified in Counselman v. Hitchcock, 142 U.S. 547 —

(1892), on the ground that it was not an adequate

substitute for the Fifth Amendment. |

| “The Counselman opinion did not discuss the consti- -

: tutignality of a.statute of the second type, full use re-.

striction immunity, the issue not being present in the’

case. But it may be inferred from the Court’s ex-

tensive discussion. of federal and state precedents that

..such a. statute would be tonstitutional. The present

appeal brings to the Court for the first time ‘the con-

_stitutionality of full use restriction immunity. The -

Counselman opinion did note that a statute of the

_third type, absolute immunity, would of, course be con-

Ly stitutional. However, that’ statement is at best dictum

if read as an exclusive. requirement, and is better read —

"as a rhetorical statement: in keeping with the ‘impre-

cision both about the Fifth Amendment. privilege and

about immunity statutes found in all courts in’ this - ;

3 =: cee ot

e -

I ie a es ah a oe!

e°

OBES pO

. “ ad 7 4

d 4

gene — —

PS eRe enone aian ose iomiaicin enn teenie cionecsmeimtemnem

]

Faced, however, with this ambiguity ’ in the. Counsel:

‘man “opinion, Congress chose to play it. safe, and its

next immunity enactment—in support of investigations

under the Interstate Commerce Act—took the form of

- an absolute immunity statute. It.was sustained in

Brown v. Walker, supra, and ‘became the model for

immunity legislation, federal and state, for 75- years.

More realistic perceptions developed’ in the decade of

the 1960’s; however, in response to several opinions .

of this Court beginning with Murphy v.. Waterfront

Commission, 378. U.S. 52 (1964), and legislatures began

—- to adopt the middle position of full use restriction im-

~ munity, e.g., the. New Jersey. nae 8 at issue in the in-

-stant appeal, and ‘the new: federdl witness immunity

act of 1970, 18 U. S.C. §§ G001-6005 (1970). -

An absolute immunity statute is an ‘immunity bath”

Statute. It grants blanket amnesty, or pardon, for

any offense related to the witness’ testimony. If the

offense is *related’”’ to the testimony, prosecution is

barred even if the government has, sufficient independ-

ent, untainted evidence to obtain a conviction. The

concept offends not only logic but history. A careful

. study of the sources reveals that there is ‘nothing i in, the

. English origins, early history, constitutional adoption, ;

or nineteenth century perceptions of the privilege

against compulsory self-incrimination which _ Supports

the proposition that a witness immunity statute can

serve the purposes ofthe privilege only by operating

* as a total pardon for any’ offense related to the com-

. pelled testimony. * :

The essential purpose of the Fifth Amendment -

~. today is to ensure that.an offender shall not be forced.

__tohelp convict himself. The problem:of religious and |

iC)

< . 7

politicat dissent with: which the. privilege was asso-—

ciated in its seventeenth century: origins is now

- covered by the First Amendment, and a whole cluster

of clauses in. the Bill of Rights safeguard the cor€ of

the ‘‘accusatorial”’ method of law enforcement, as dis-

_ tinct from the inquisatorial method.

‘The absolute immunity concept,. by. exacting too, high

a price frem the government and offering in effect a

gratuity to erime, discourages governmental use of the *

immunity device aS a law enforcement tool. This —

_ effect’ was not eritical so long as the crime problem —

centered on individual crime. Today however, with -

' ‘the substantial increase in regulatory offenses and

group crime, including white ‘collar offenses such as

‘consumer fraud and the pestilence of ‘‘organized

_erime,’’ this effect is most detrimental to law enforee-- .

ment and the protection of the public, In group ¢rime

there is little hard evidente, only a web-of illegal under- -

standings, and interrogation is gesential 2 as a law en-.

= foreement tactic. 2

-In all other areas of evidentovelated ‘constitutional

principles, our reliance is on the exclusionary rule, :

which is the analog of full use restriction in immunity’

statutes. For example, Miranda v. Arizona, 384 U.S. |

436 (1966), and a long line of search and seizure and

- electronic eavesdropping cases rest on the exclusionary

rule, not on a blanket ‘pardon concept.. It would: be -

, anomalous to try to maintain the position that the ex-

elusionary rule is good endugh for: safeguarding

7 against harm flowing from police violations of consti-

tutional principles in investigations of street crime-and.

the offenses especially related to the poor, but also to -

- argue that the crime of the middle ¢lasses—white:

collar business crime, and organized crime—require

blanket pardon before the immunity technique can be

invoked. | |

A full use restriction concept can be placed under as.

heavy.a governmenital burden’ of proof of the ‘‘inde-

- -~pendence”’ of evidence used after an immunity’ grant

. as the Court deems needful to preserve thé constitu-

tional privilge—gven_ more. stringent than obtains in

‘search and seizure situations. ° Mi iranda Vv. Arizona,

-. supra, itself rests on something akin to a burden of

' proof concept related to Fifth Amendment interests.

Full use restriction statutes also avoid the problém as-.

sociated with absolute immunity statutes of proving .

-thé relationship of the testimony to the future prosecu-

tjon, with the burden allocated to the defendant. Fur-

ther, ‘full use restriction better preserves equal treat~ 7:

ment valués among offenders than does an absolute im-

munity statute because the one immunized obtains a

- complete pardon, while the other may go to jail...

~ Although. much has been fitnde of the supposedly

greater difficulty, inside a given law extforcement juris- -

diction, of policing full use restriction immunity than

of policing absolute immunity, no empirical proof has - |

been advanced. Our traditional exclusionary rules for

confessions and search. and seizure have operated as

effectively in intrajurisdictional - context as in inter-

Jurisdictional | context. vane :

—~—

° Looking to the future, a full tise réstri¢tion Seicitty

— formula could bean: appropriate way to extend the

immunity technique on behalf of defendants, thus im- —

plementing their Sixth ‘Amendment right to -compul-

sory process even in regard to Fifth-Amendment-plead-

- ing defense witnesses. By contrast, it would_be_un-

gg AE

_ thinkable to empower defense counsel to confer “ab

solute immunity in such situations.

, In short, a full use restriction immunity ‘pons is

constitutionally ‘adequate to compel testimony under ..

the Fifth Amendment, is in accord with traditional-

exclusionary rules, and avoids the immunity bath prob- ~

lem and other ‘problems associated with the atypical _

se concept of absolute immunity.

-ARGUMEN T

I... NOTHING IN THE ORIGIN, EARLY HISTORY, AND PURPOSES

OF THE PRIVILEGE AGAINST COMPULSORY SELF-

-INCRIMINATION, NOW EMBODIED IN THE FIFTH: > AMEND-

MENT AND MADE APPLICABLE TO THE STATES BY THE |

FOURTEENTH, AMENDMENT, SUPPORTS THE PROPOSITION

THAT A WITNESS IMMUNITY STATUTE CAN SERVE. THE

PURPOSES OF THE PRIVILEGE ONLY BY OPERATING AS A

TOTAL PARDON FOR ANY OFFENSE CONNECTED IN ANY ~

WAY WITH ‘THE COMPELLED TESTIMONY.

AL Seventeenth Century English Origins

The privilege against, compulsory. self-incrimination

is at once the most romanticized and also the most com-

_ plex and niisunderstood of the guarantees embedded in

the Bill of Rights. Its recognition in English juris- —

prudence is generally traced to the. seventeenth cen-

. tury, a time of major political and religious upheaval _

during which both the Stuart monarchy and the regime ~

_ of Oliver Cromwell resorted to extraordinary tribunals

to repress dissent and bolster the realm. The. trigger

for the development of the privilege was ‘opposition to-

the “oath .ex officio.”” The oath had its origin in the

ecclesiastical courts and was commonly used by. special

tribunals such as High Commission and Star Chamber, — .

but not by the common law courts. The oath procedure

was often ‘the basis for a “fishing expedition” con-

ducted without prior charge, or extending into matters z

SHON. PED ype eae Seon

Aeetupee VRE MTL alice Sasa castrated a aa

SOP as

e . an)

‘ ~ . '

8 . . . a. .

j AM LOIRE NE OTR AN SM AN NOMENA ORK NAIM a

12.

wurelaied to ied charges as were made. For refusai

. to take an vath and make responsive answers the wit-

ness could be subjected to. physical compulsion.’

_ Lurking in the background of virtually all of the

cases in.this formative period was the factor ‘of reli-

- gious or political. persecution—an attempt to. use the

power of judicial process to coerce orthodoxy in Pith .

. or politics. The cases were one “facet of the seven-.

teenth century struggle to contain the monarchy and

- subordinate’ it to the, instruments of popular govern-

-ment.. It is striking that. the landmark cases in the

development of the privilege did not involve the com-

pulsory disclosure of crime in the usual.common law

| _. categoriés of offenses against | sc exe sc tied or the *

public peace.

. Decades, indeed. certhiries, of development came. a

a head in the career of John Lilburne, a Puritan and ~

“subsequently a leader of. the Leveller ’ party, which

under the Commonwealth sought extension of popular

_ democracy, a written constitution, and an abolition of

preferments based on property. _ The, experiences and

5 These two ‘paragraphs are perforce a brutal condensation of a

long sequence of developments, many details of, which rémain

obscure despite the extensive historical scholatship’which the privi-

.lege has attracted. See Lévy, Origins of the Fifth Amendment

(1968) ; Mayers, Shall We Amend the Fifth Amendment ( 1959) ; a

Wigmore, Evidence §§ 2250-2284 (McNaughton rev. 1961). Levy

is best for the early period., His. work ‘is flawed however by a lack

. ‘of legal knowledge and a cutoff date shortly: after 1790 before the

historical details but he himself is weak on the relation of the |

privilege really had become very clear either in England or

America. He faults Mayers and Wigmoré for inaccuracy on some

privilege to the totality of constitutional guarantees in the investi-.

- gatory process. Mayers’ book is excellent for overview on the

. Fifth Amendment; and perusal of Wigmore’s treatise. is a must

' whether or not one — with all of. me conclusions. |

-* ‘trials of ‘‘Freeborn John,’’ whom Professor Levy has

- ‘ealled the ‘‘most remarkable person connected : withs

. the history of the origins of the- right against self-

incrimination,’’* Jend valuable perspective to an un-

derstanding of the origin and original purposes of the

privilege. His first offense, was importing seditious :

‘Puritan books into England from Holland, sworn to.

in an affidavit by two confederates ?n. at Lilburne’ Ss:

PARES 2 Mo eeER NY

1 WTAE RRR

denial of the accusatidn was probably |a lie according

to Levy,’ but the crucial point was that Lilburne re- ©

fused to hogor the Court of Star Chamber procedure

and to deny the, accusation under oath, or to respond

to. interrogatories under oath. -For this contempt he -

was sentenced to fines and imprisonment, and:was- . {| -

awhipped through the streets on the way to the.pillory. °

Still defiant in the pillory he harangued the assembled

erowd (until gagged) ‘and threw them copies of -the

forbidden books. :

In the ensuing years his pen: and further petsecu-

tions br sught him fame and an eventual collision with .

Oliver: Cromwell, resulting in two more trials for his -

life—again before special tribunals. but with use of . : o

a jury. In these trials the only “legal” issue was his ©

~ authorship of certain. tracts (1649 trial), and. his

.idéntity as-the pérson named in the bill of attainder

(1653 trial). Although the oath process was not used,

Lilburne was pressed ta plead to the indictment, to .

respond to ‘questions, to say whether certain handwrit-

ing was his, to say who he was. To. all of this he re-

sponded: with a barrage of words,-and technical ob- -

3 jections, and —— non-responsive because, —

ee SAS RAE FIM SM AL AORN MEY yee

“8

RPO PLEIN TT nee s —

ey Levy, supra 271.

5 Id. at 273.

. .

a ee SE aD hae »

“ .

he said, the Petition of Right taught him to’ answer no

"questions ‘‘against or-concerning/’ himself.’ His basic

strategy was to appeal to the jury, over the heads of

the judges, and to do this he had to give them some

_ technical’ basis—by his refusal to give responsive an-

swers—for doubting authorship or identity.

In both trials he succeeded, even though in the last -

~ trial Cromwell virtually, had London under maftial

law. The last acquittal) however, had no impact on

government policy. Cromwall had Lilburne moved ;

| from Newgate prison to the }Tower—‘for the peace

of- ‘the’ nation”’;’ thence to exile’ on the: island of —

Jersey ; and finally’ back to Dover. After his death

in 1657 Parliament-revoked his illegal’ sentence. _

More than‘“‘any other individual,’’ says Levy,° Lal:

- burne was responsible for the acceptance of the prin: .

éiple against compulsory self-incrimination. Andhis

career is equally instructive on the “original meaning” ;

_ and function of the privilege against compulsory self-

incrimination. In’ the context of the time it was the

sole available means to certain vital libertarian’ ends .

which we -now achieve equally effectively, or more ©

effectively, by other devices. In\part it was q juris-

dictional plea. In the regular criminal courts at this

time interrogation of.the accused did: oceur, ‘but there

. was no means for compelling. an answer.’ Indeed, the *

common law-courts.from the outset caiad themselves

‘on avoidance of torture. 4 _ Lilburne and others were.

6 Td. at 307.

7 tag © a | SRY

8 Id. at: 313.

® Mayers, supra note 3 at 6.

_ 2° Levy, supra note 3 at 33.

"crimes but to freedom of speech and religion.

was not investigation of common law crimes, Or busi- ~

. hess erjmes, or- the) rackets of organized crime, or .

routine maintainance of public order, or even politi-. :

6 2.

“tetos seat hetoxe eee tribunals who did: mrs :

respect this policy. From this. perspective the plea.

against self-incrimination was a jurisdictional plea,

seeking to have special tribunals conform their prac-

tice’ to conventional practite—analogous to modern

_ pleas to remove certain cases 3s from vcetggh snares juris-

diction. : :

Even more significantly, tite selftinariniination plea ::

_-was‘an.alternative to the as-yet unborn right of free-.

dom of speech and press, including freedom of vit-

riolic pamphleteering against the current government.

Free speech not being a r ‘ight; Lilburne’s tactic. was

to use the plea against ‘self-incrimination.as a way :of

_preventing the government. from proving autlforship

- (though he was the author as all knew). And the

_ jury in the last- two trials was rendering really a

free speech- political dissent.verdict,. So at the: outset .

the. origin of the “‘Fifth’’ was anomalous, if not con-

fused—it was not, used effectively t to lock torture, but

as a roundabout: way, in trial strategy, of vindicating

an unborn right of free speech, even under a dicta-

torial Great Protector.

“As Levy ‘percedtively observes. in his conclusion %

-his analysis of the “securing”’ of. the privilege in

seventeenth century. England, it was not lipked. to

‘ issue

-eally-motivated killings, bombings or destruction of

property. At issue was peaceful, if vitriolic, puiiticg! |

and religious dissent. As he puts ‘it:

Above all, the right was most closely hbet , ae

freedom of religion and speech. It was, in } Its

NET MRIS STE LETS

ETS EE ORY ERR RSI ET

. ; L

“< RS ~ a, “ S —_ =

] RF SRIONGINN, 9) To TORR RN STAINE NN RE EY IT

-' 16

schism, and. nonconformity, and, later, of political .

crimes like treason, seditious ‘libel, and., breach_

of parliamentary privilege—more often than not,

the offense was merely criticism of ‘the govern-

ment, its policies, or its officers. \The right was |

Rane associated then wit ilt for crimes of conscience,

@ ~ of belief, and of ass®iation. In the broadest sense

it was a protection not of the guilty, or of the

innocent, but of freedom of expression, of politi-

eal liberty, of the right to worship as one pleased.”

At the risk of anticipating somewhat the argument.

_- yet to come in this brief, it may be observed at this

' point that a perception of the ‘historical background,

' is doubly instructive. ‘The . preeminently precious rights

—now called First Amendment rights—to secure which.

a self-incrimination privilege was asserted by ‘ Free-

born John”’ Lilburne as a procedural ploy, are them- _

selves even today not viewed as absolutes: . It-is still ©

origins, ‘unquestionably the invesiticis of t ose. a?

who were guilty of religious crimés, like heresy, ©

as true.as it was in 1919 that the “most stringent s i

protection: of’ free speech would not protect,.a man

in ‘falsely. shouting fire in a theatre and causing a °

panic.” Schenck v. United States, 249 U.S. 47 Sih

How anomalous it would be then, ‘in the light of

tory, to insist that-an immunity statute: désigned is

‘offer an equivalence for the privilege against’ self-

inicrimination must go beyotid immunizing the testi-

mony and. its fruits, and offer an absolute immitnity

from any prosecution related to the testimony. “Even

the Fifth Amendment itself does not operate as a

pardon. Defendants who refuse to take the’stand are — -

convicted on other: evidence with regularity.

SIM te

7 mn .

_B. ‘Reeeeete Privilege in America| :

Once we'leave the time of John Lilburne ' we enter in- |

to a sea of confusion concerning the. breadth of the —

” privilege against self lncyiniination as receivedsinto the.

= common law, the’ ‘eftent t to which'it was later eaufiedided | |

‘in constitutional law, the gradual changes both bro

lege, the timing of these changes, aud the different de-,

_ velopments.in England and America.- The questioning

- of the accused at his trial gradually’ ‘eceased_and was re-""

placed with a right of the accused not to take the stand.

“—not, however, because of self-incrimination but be- ° ~

cause of the common law rule that self-interést ‘made . -

parties incompetent: as witnesses.’ Subsequently, the

right not to have adverse comment made on his. failure

to take the stand was added. More importantly for our

purposes, what had begun only as a protection for the

accused was gradually extended to an ordinary witness,

te. ee

pu «

regard to witnesses, was gufficie unclear in Ameri-

tion that the. Fifth Amendment. language does not in

mon law practice at

. narrower than the apparent

_the time in'some oe, and fa

’.

* Mayers, supra note 3 at 17. . i,

18.T¢. at 290-91. See also Levy, supra‘note 3, at 368, 202-04

‘who, however, does not always ‘keep in mind the distinction betwee

_ the accused. and the witness in eee ® to = privilege: :

a |

oe i.

ening and contracting the perceived scope of the privi-~

albeit the record is confused and dates afesmueh i in din:

_ Particularly siguifcaint | is the faet that the privilege :

against compulsory self-incrimination, especially with .

can. practice at the time of the constitutional ¢onven-

|. terms apply’to witnesses (or even to” parties) in all ._

- | ° .~ situations. The language: of ‘the Fifth Amendment: x

larrower than our cur: .

OH FN LRM MRR TRS ger

at 8

. > ‘ . .

e, . oa >

ves PRE HI ON em. > Ms "

SONNE PRO, 2 ERE ARES SL at eee een

? : ms .

- : : ~

PORT INET IEE a

SI RNREM ate ge Senge:

a witness apainet himself.” _ eS

+ which focussed only on

< 8 rent, enabling icdibasenieales: of the scope of the

, ~ privilege. The amendment provides only that ‘‘No per- —

-gson:. ,. Shall be éompéiled in any. inal case to be a

HDR

, AS

“Renetit not merely to these words but ial to legis.

“éeeding, thus dating ita eoloatioes sitesi rimi- “ eH

‘ nal defendant himself: He reachag-thjs conclusion by...

an analysis of the narrow language of the: contem-

- poraneous, (and some e bsequent). state constitutions

e aceused, the similar focus of

early drafts of the Fifth Amendment preceding Madi-

son’s draft, and the insertion of the phrase “criminal

‘ease’? by Congress in the Madison draft."* Although

objecting to Mayers’ interpretation, Levy never. really °

_ mes to grips with the full sweep of Mayers’ analysis.

- “He does concede that the question whether the ‘‘fram-

érs of the Fifth Amendment intended it to be fully Co-.

Bassons with the common law cannot be proved—or

. disproved. 18: Tt also may be noted that Chief Justice ee

* Marshall-did not refer to the constitutional clause ote

he sustained the right of a witness not to answer a’

_ incriminating question in Burr’s trial. In re Willie _

“¢ United States: v. . Burr), 25 Fed. ‘Cas. 38 - C.Va.:

1807 ): :

eres

Bh. Mayers, ‘Phe Federal: Witness’ Privilege: Libis Self-In-

_ cfimination : Constitutional. or Common-Law?,’’ 4 J. of Leg. Hist.

107,.108- 19 (1960). Mayers also. surveyed early nineteenth century .

As treatises on the law of ‘evidence and found that what we now call

the privilege against compulsory self-in¢rimination was ignored. or

received caqual mention. Mayers, supra note 3, at 315-16.

ad Levy, a note 3, at’ 429.90

ane SS

a ; crimination ‘arises. What this historical analysis =

ee against the view that the self-ineriminafion privilege i is_.

by the extraordinary: device of ‘absolute’ immunity;

- Pre-Nineteenth Century Examples

_» demhity”’ to overcome self-incrimination i in England or

_- have little relévance to the present day. Some ga

7 19. Jost es

’ - Itis not our intetiti n to redfight the battle of. histori-

eal interpretation, tever its original meaning, it |

has Veen clear since Counselman vi. Hitchcock, 142 —

ie S. 547, (1892), that the Fifth Amendment privilege

‘may be.invoked’ by a witness as well as"by the Rocused,

and the privilege has been extended beyond the ‘crimi-.-

nal case” to all. official proceedings in which self-in-. :

does suggest i is that we are dealing with a. value which |

was quite murky in its inception. ‘ Once divorced from |

the freedom of speech interest with which the rise of

the. privilege was associated . in ‘the sevenjfeenth een- *-

tury, the privilege was not perceived as being of the |

highest priority. for. protection as a constitutional ab-'

.- Solute in all circumstances. Hence this history argues

so preeminent and unique that it can be replaced aoa

‘rather than by the conventional use-restriction or ex-

clusionary i unity which adequately, safeguards :

_ other important constitutional . interests. concerning |

~ coerced confessiens or search ‘and seizure violations.

1. PRE COUNSELMAN V. HITCHCOCK CASES CONSTRUING ;

- STA OR IMMUNITY GRANTS SUGGES THAT ABSO-

LUTE IMMUNITY IS NOT REQUIRED. ss

The very occasional early.instances of giving ‘‘in-

_the colonies present a mixed and uncertain picture and

ties, as they were called, seeméd to. be of a limited ‘us

restriction’? nature, others may have been- wari

There are isnine of ad hoc indemnities created for

particular witnesses who were obvious law breakers -

« | 20 5 :

. St & Le —~ ‘: : :

‘these. siadnadt jes operat the nature of a jantion, ve

_ . which is of course a broad ¥ét of grace not necessarily :

‘related to the. self-incrimination issue.”

's .. Phe scope oftifidemnity was’ seldom clear iynsdérn:

_ standardsgwhich distinguish three types of immunity: |

() prohibition of direct use: of the testimony in fu-

ture prosecution (limited use immunity) ; (2) prohibi-

oS tion of direct use of the testimony and any fruits: de-

rived therefrom (full use immunity) ;7 (3). prohibition

_ of prosecution for any transaction related to the com-

-pelled testimony (absolute. or ‘transactional?’ immii-~

nity).. For example, in New York in 1772 a use re-.

- striction immunity provision in lottery legislation i im-

munized. offenses only under that specific act; and in a

Pennsylvania legislative inquiry into. seditious’ speech . -

“ in 1758 immunity was offered, again ‘apparently only }

* *- inthe context of the particular offense under inquiry,”

_ See also the following early English cases which either |

_ support, the’ foregoing comments or are sinyply am-

biguous,on these issues. Lord Chancellor Macclesfield’s

Trial, 16 State Trials 767, 921, 1147°(1725); Bishop

= Atterbury’s Trial, 16 State * ‘Trials 323, 604 (1723) (ad. e:

‘ hoc. immunity grant) ;. 1742 investigation of Robert

a Walpole, broad ad hoe statute but apparently not. ab-

even if based on independent testimony, 8 Wigmore,

16'See, e.g., the 1760 use of pardons i in the ‘interrogation of New

York ship éaptains in a = with -the enemy oucamiaes

———_Levy,, supra note 3, at 389...

at this point, but it fails to distinguish the limited, direct use im-

munity statutes from those fally safeguarding — both direct

and derivative use. re

48 Levy, supea note 3, at 403 (wy) and 38§ (Pa.).

solute in the sense. of barring all related prosecutions sy

17 Testimonial’? immunity “a ak civtaneanl blaehsoeebbelin ‘and aeeaetecges

. ° \ .

‘ ‘ . 2 . . ‘ capae a , YM

: : 5 ‘ é ‘ .

ss ry Rees . . SY ‘

s . : :

Ht ‘ ‘ « Sorat eens on ORS + POM ANEE D sf See na Ree se . wierd

RENIN OI LG ONES SERENE. AT IEE A GE NEY ARE AES pie See ores eae ras wares) mee EE SRDS A ARRAN OOHRS, are ve

; i

. gas sag ¢ sa : : : : te ere: zs xd ;

a ‘ t= ‘ : ’ 4 .

8 f rae ” nN eee rein Se : ; ‘ ~.

; ae pr oe

¢ -

as 2 wo

Evidence: $2981 n3 , QleNaughton rews*1961) ; Reb v.

Warickghall, X Leach’s: Crown ‘Cases ‘263, 264 —

_ (allowing even use of rescind of the palennee tree in ex-.

torted confession pli ne :

~S There is:no indication that. any. of these catty lenis

| lators wére even thinking of the three varietie: of im-

munity noted above. It is ap) rent that they Viewed |

the danger primarily m terms of direct use of incrithi-

nating testimony, and the actual wording of the im- - ©

. Tounity statute’ was happenstantial. | However, in- the.

- context: of most of the inquiries. of -that day, no de- -

, Tivative usé was likely anyway, 80 that even a limited

direct-use. _—— — gave adequate protec: _

~ tion. | <3

‘It is significant that. once e immunity itatatten es to

, ; Pity in the context of modern governmental law‘

enforcement needs, to which we now turn, the developed ..

practice in England and Canada was to employ a use.

restriction’ rather’ €han the absolute immunity con- :

eept. And the same was true in many of the American

states whose experience with immunity statutes ante-

dated. the federal experience ‘and was discussed in

Counselman v. Hitchcock, supra. | : Toesn a —-

“-

B. Nineteenth Century American Prattice Sas eevlas /

When we turn to the American practice in the nine-

- teenth century we again find little support for an ab-

solute iramunity concept. The. dominant theme that

emerges is intellectual confusion between the common.

law privilege and: the constitutional langua un- ..

certainty concerning both. ~The next theme that -

| ~ emerges is that use restriction rather than absolute éx-'

* . * oneration was.deemed adequate. to ‘satisfy the privilege of,

Perna

‘insofar as the issue was ‘raised at all because im- |

S88, ie HDT RNP PAT RE LAI EGR ALTE TE LS AEE NRE ON REISE TEI IIE NITE LING NT EN ETI EN FRO

- = - ; . 3

' munity’ statutes. were rare. A third-theme ‘finding .

- ‘some support is that immunization of the privileged :

testimony alone would be adequate to satisfy the privi-

"lege, without” "need to immunize the: “*fruits.’’

The idea that. the. ‘privilege ineladed self-infa =

“which had never been clearly established; also faded.

away. .There had been intermittent intimations going

2 \ incriminating. The suggestion,: however, that the Fifth

Amendment as drafted was interidéd to.encompass self-_

infamy as Well as self-incrimination has.been labelled a.

“baseless concdction,”’® and, Brown v. Walker, 1161

‘U.S. 591 (1896), expressly, repudiates the self-infamy

claim. ‘A rejection of the self-infamy ‘concept i is qa pre-. |

all the: way back to the 1500’s that. the laaw of evidence .

frowned. not: only on: self-incriminati¢ whens also.on :

self-infamation—infamy: ‘or-disgrace even though not

condition, of course, of the validity of any immunity

ce ‘statute, whether of the absolute type; or the full use

. restriction type. . Only complete ‘silence can guard

> against self-infamy—if then. ° :

_ The dominant approach i in tlie state cuits i

was that “use restriction

immunity, even of the sort that only barred direct use :

of the testimony and did not bar derivative use, was

adequate to overcome a plea of the privilege against

_ compulsory self-incrimination. Nine states upheld im-

; ne munity statutes of this narrow sort: “(Arkansas, Cali- ‘.

fornia, Georgia, Indiana, Lowa, Missouri, New York;

€

North Carolina, Vermont), and‘@ily_three states re-

ented theta (Massachusetts, New Hampshire, Vir- .

gia) 8 Sdseeaae cannes Bee. 2283 n2 Cie.

: 19 hae supra note 3, ‘af 515. For backigrognd on onaet see

Mio 8178; 515-16. sais. lag He

See ge

sFgye?

$ : r

bs a

- s . . . . .

of - - .

* at . a . af .

* sie pinten nee vo eA OO ee ee eae ek ee a Te, ae LS ETC EE ARIE NOUNS OLE FE PP EIEIO, OE BEA RBIS ES Sh

° aot X :

s ¥ - ‘

| ou eral practice under the = Amendment.

A S Seasbakis rev. 1967): ag > The, New. York. court, ‘apeiae eg |

a constitutional clause which protected a person against 2

_ being a ‘“‘witness”? against himself; was particularly |

'. forthright in rejecting the argument: that indirect use.

~~. as well as direct use of testimony must: be barred, say-

‘. ing that ‘‘neithe? the law nor the Constitution is so

- sedulous to. screen the guilty as the - -argument a

poses.”’ People v. Kelly, 24 N.Y. 74, 83. (1861).

The aniooitty of states taking the contrary ale

did not themselves forthrightly embrace the other ex-

treme—absolute immunity—but stressed the | néed to.

\¢ e safeguard Sate the. dangers of: derivative use.” .

_ Their basic position was to insist only on full pse: re-

striction immunity, covering both direct and derivative

use of the testimgny. Their occasional use of broader ©

‘absolute immunity”’ language is ; meré loose. usage. :

z \yone who peruses these. early’ cases should be. forewarned. .

a r Fe @ will encounter obtuseness and loose language, so that-a———

ual analysis and eareful judgment in selecting quotable language.

-court explicitly approved a limited use restriction concept, and

prosecution even after immunity, provided the evidence be inde-

pendent. It then talked about the need to safeguard also against

_ peripheral dangers. On close reading this turns out to be a con-

‘+ eern not about derivative use of immunized testimony (use and

fruits), but only a concern about direct disclosures by: the witness

of crimes not the subject of the immediate i inquiry.

| Tennessee: may are exception. K statute which Appeared to ae

offer absolute immunity: (although it is unclear whether it would |

. bar prosecution on. independent evidence, which is an element: of

the absolute immunity concept). was upheld as sufficient to. replace

‘ the privilege, as of co it should have been. ‘Hirsch v. State, 8:

. Baxt. 89, 91 (Tenn. 1874)..*The dissenters in this case prevailed

| -+ statute could overcome the privilege—a view not followed i in- fed- 7

. proper classification of ‘a given state’s position requires a Gontext-

a For example, in State v. Quarles, 13 Ark. 307, 310-11: (1853), the ..

in a subsequent case, apparently on the: ground that no immunity ee

“The facts of the eases did not put i in igtention the altesiey 7

of full use. restriction immunity itself, andthe courts

themselves did ‘not postulate that intermdfliate posi- -

- tion ‘between limited use are and et im-

g munity, -

- For example, in ‘Commoniciesith v. Emery, 107 Mass.

171 (1871), the court construed the state constitution as

_ protecting against derivative use and not merely direct * ee

use, and voided a limited, direct use statute which only~

provided that ‘one’s “testimony”: shall “not -bé us ed.as ©

evidence” against him, In doing-so the court stressed

that the Massachusetts-constitution, uilike New York’s, -

” Lleenailed tt only against self-accusation but also :

ae to ‘‘furnish evidence against him- —

_, __gelf.”? “The court: then went on to. say twice that the _

immunity . must be coextensive with the protection eae

which ‘‘he would be secured” under the plea of privi-

lege (exchange theory but not a pardon theory). It

then ‘added ‘in semafitically eonfused fashion the fol- _

_ lowing: “Under the interpretation already: given this -

cannot be accomplished so long a8 he remains liable to ~

"bas ‘proseéution criminally for any matters or causes. in

A respect of which he shall be examined, or to yok ood.

‘testimony shall-relate.” Id. at 185. -Taken out

Xy text this. might sound. like absolute immunit¥” even

A barring prosecution under independent.evidence for an

: . . . Offense to which his “‘testimony shall relate.’’ “Taken "

:. - in context, however, and surrounded by two sentences

| stressing the exchange theory, the court was only ex-

. pressing in rounded but careless rhetoric the full use

restriction theory. See further discussion of Emery,

“ infra, i in. the critique of the Counselman opinion. :

: The New Hampshire. court, after initially following er :

ae New York j in approving limited use —_—— switched

eee Ss ° —_

; | .. . have so treated it. “For in ‘saying | that the vit Ne

i would be invalid if it contained only the first ¢ Py

Be - ” the court relied squarely on Emery, and it is dear

A ee s oe aaa is 4

Se eae a en ee LEE TOPE OO

2a eee

a isasditioatie State. Noi

opinion by const;

against direct

Oo f . eo”

pores f 8 N. H.

See te 314: (1878).° The two states’ consti ional elawses were

pone ‘the same, and the: New, H pshire_ court opened its ©”. .

constitution as safeguarding -

yand fruits’ (admissions as ‘‘sources’??

ting evidence), thus setting up the seme on

_—exchange theory which is more clearly articulated in®© ~

“e¢ -between the. disclosures and the subsequent immunized

a prosecution. Turning ‘to the statute it found two

_ ring use of oné’s testinfony ‘‘as evidence; direetly or in-

- derivative use; rightly | or wrongly the court seems te~.

_ that"the Massachusetts statute in Emery was only a

‘limited use statute. The court also quoted the loose

though the second clause in the New Hampshire act was.

vision. _ ee. te

"tional. elause ee. — a “evidence

‘ Commonwealth v. Emery. In-clapifying the essentials

. of.a valid immunity statute the court sai the act must :

“. seelieve one of liabilities ‘‘on account of’ the matter -

-fiselosed, again suggesting a needed causal connection _

clauses, a-use. restriction clause and.an absolute im- -

- -Munity, clause. The former, although phrased as ‘bar- |

/. directly’? against him, arguably would, not reach all

rhetoric of Emery already discussed above. Thug, even’

an absolute immunity clause, the court ’s opinion can be~

. , read as rejecting limited, direct pise immunity and ap-.

> fe: *, proving absolute immunity as adequate, without atin

. 80 far as to endorse absolute immunity as a constitu-

| tional requirement.’ It passed up af apparent oppor-

_ tunity to diseuss the efficacy « of a full use Demme’ pro- -

>) Virginia court, cnius a similar state constitu-

Ae ey

-against himself,’’ likewise rejected a limited use re-

- striction statute. Cullen v. Commonwealth, 24 Gratt.

624, 633 (1873). It pointed to the danger of derivative

use, whereby the government would che led by the im-

-munized tesfimony to other ‘(means and sources of in- .

- formation”? of incriminating nature, . Hence, again the ..

court’s additional reference to the need for an ‘“‘ab-'—

solute wiping out of the offencé as to. him’? must ‘be ~

placed in context. ‘This would giye protection, but the

alternative of full use immunity was -not .considered. om

Also, in the quoted phrase, a wipisg out of “‘the of-

_fense’’—aid by a surgeon in a dueling matter in this

’ instance—might not safeguard against other offenses

_. disclosed such as practicing medicine without a li-

_eense. Such a “complete amnesty,’ related o y to

- the offense under inquiry, would be more narrow than

full use restriction immunity. : :

- On the basis ‘of Emery; Nowéll oor Ciitlen it can be *

. gaid that even under state constitutional clauses broader :

than the Fifth Amendment (“furnish exidence against

himself’’ clause), absolute immunity was not. clearly -

held to be mandated.’ And most courts in this long

formative period were satistied—-wrongly in our be-:

lief-, with limited, direct use immunity, thys allowing

derivative use of the testimony extracted. :

To the same effect are the federal cases ufider the’

“game federal. immunity statute, R.S. 860, which was at

issue subsequently i in Counselman v..Hitchcock. ‘United.

States v. Brown, 24 F. Cas. 1273 (No. 14 671) @. Ore. —

1871); Upited States vy. McCarthy, 18 F. 87,89 — -

(0.C.8.D.N-Y. -1883) ; United States v. Williams, 28 F. :

Cas. 670. (No. 16717) . (C.C.8.D. Ohio. 1872) ; In re

Strouse, 23 F. Cas. 261 (No. 13, 548). (D. Nev. 1871);

| Inre Phillips, 19 F. Cas. 506 (No. 11,097),(D. Va. .

).. Indged, the federal courtip the McCarthy. case, ; ,

in 888 ite and quoted from People v. Kélly, supra, in

statute. which immunized only, the actual testimony, and.

“court, however, did not explicitly : ‘fule on this point -

_. (derivative use not being int issue in the cases),. nor did - -

the court discuss whether the federal statute shotild be

read as a limited use inmunity statute, or a full de-

rivativé “use imunity, statute. Arguably, the federal,

way, because ‘it contained. the additional = ‘iy,

2 Nature of the Statute under Litigation

. We thus gome down to: the Lidioark case’ of Coste 2

any maapay vaedrapainet Rit.” ee

ACTUAL ONY, IS INADEQUATE

"i, COUNSELMAN HOLDS. THAT A LEED UsE 7

ee TION, STA , IMMUNIZING ONLY oe OF THE

. {COMPULSORY SELF-INCRIMINATION SECAUSE IT god

... NOT BAR USE OF THE DERIVATIVE “FRUITS” OF THE TES-

‘ ‘TIMONY: NO FULL USE. RESTRICTION IMMUNITY §TATUTE —

yas the New York court had explicitly said that a

" not the fruits of the tree,’ was constitutional. The a

_ Statute (quoted in text, infra) could be construed either ne

WAS B THE ‘COURT: ALTHOUGH. ‘MAIN BODY OF — _

THE.COUR OPINION INDICATES THAT SUCH A STATUTE

~ «WOULD BE CONSTITUTIONAL; THE COURT'S CONCLUDING

LINES ABOUT THE CONSTITUTIONALITY OF AN ABSOLUTE |

AN EXCLUSIVE REQ es

"|. IMMUNITY: STATUTE IS AT. BEST A DICTUM rr weeed aS.

. * °s ee

: -selman y. Hitchcock, 42 U.S. 547 ((1892), with a strong

> state and federal court commitment toward a limited © ,

e restriction immunity eoncept, and little or no sup- a

port for an absolute immunity concept. re also —

had been a fair amount of conceptual confusion in the

‘opinions of these: pre-Counselman courts, if not in the

= because of a failure to ass that there are.

Si limited use. immunity, which tn only direct, use Sot the

actual testimony; (2) full use- immunity, which “also sat

__ bars derivative use through leads to. other evidence or

(and which: thus is even broader than an amnesty con- °

fined to a particular offense) ; (3) absolute immunity, \

~ meaning full amnesty for any offense to-whieh any

' _ testimony relates, i.¢., ‘‘immunity bath.’’ «Not to put

too fine a point on it, the Counselman court share this :

~* eonfusion, thus contributing - to continued conceptual

difficulties ! in-the immunity statute field.” ;

The Counselman. litigation involved ‘an. jmmunity

_statute*derived frorn.a measuré passed in.1868 for the “

‘more effective adnifnistration 6f justice. 15 Stat: 37;

and see comment of Congressman Williams, Pennsyl- Mer

-vania, Cong. Globe, 40th Gong.,'2d Sess. 1334 (1868).

‘A bit of background on the experience with early fed- —

“ eral irnmunity legislation i is needed. to 0,put this 1868 law

os, in \ perspective.

‘The first federal immunity statute of any kind was

: passed in. 1857 in support of the congressional investi-

gatory power. This law was triggered by. witness. re-

-. e@lcitrance in a congressional investigation, of alleged -

- . payoffs to members for legislative favors. .In its zeal.

- to give investigating committees effective power to ~ | -

compel testimony, Congress enacted a broad immunity - .

‘provision which ‘could be, and soon was, abused.

a Phrased as an absolute immunity statute, it extended ae -

-@ Fora pistory. of federal immunity legislation ¢ and litigatjon: to.

‘1954 see Dixon,:*‘The*Fifth Amendment and Féderal Immunity

-. §Statutes,’’? 22 Geo, Wash.-L. Rev.,447 and 554 (1954). See also.

Wendel** Comptilsory Immunity Legislation and the Fifth Amend- .

"ment ‘Privilege : New Developments. and New Confusion,” 10 St.

Louis U. L. J. 327 (1966) ;.Note, 72 Yale L. J..1568 (1963). ;

? o.. : : 8

< '

Bist tains nar

: : : . =" ‘ MOBRRS ties.

- “ 6 ° . . » I _

: ‘ , :

‘ : ‘ < : -

® ‘ : ; : ‘ :

% a , : 29 :

4 mak ie Mi eek Soe

— iamuni het ‘any fact, or act. + todiohing which he

* Nae

“ shall be eas to testify.”” 11 Stat. 155 (1857). ‘En. ns

bezzlers of Indian trust bonds from thle Department of

Interior quickly obtained immunity from prosecution.

Congressman Wilson of Iowa said that ‘‘every day per-

sons are offering to testify before the investigating com- -

"” -mittees of the House in order to bring themselves with-

jn the pardoning power of the act of 1857.” Coe: oS

. Globe, 34th. Cong. -, 2d Sess. 364 (1862).

Reacting against ‘this- ‘immunity bath” problem

“Congress went from an absolute immunity concept to.

“the ‘other’ extrefne—a limited use immunity concept.’

It enatted a replacement congressional immunity stat. ~_

ute in 1862 providing that the ‘‘testimony”’ of ‘a wit-

néss 6 shall ndt be used as evidence”’ against him in any :

criminal proceeding. ¥2 Stat.. 333. (1862). That the .

Congress was aware that under this statute the’ im-.

. “munized ony could ‘still be used to ferret. out

other evidence i is indicated by-this comment of Senator _ .

Wade of Ohié: “That; is all that a rascal ought. to ©

have at thé hands ‘of justice, eyen more than he wea . a

to have:”’. Cong: Globe, 37th, Conig., 2d Sess. 429 (1862).

_ What-is not clear is:whether Congress, in thus over-.

reacting to ‘the immunity bath problem,-was aware of

or intelligently considered , the intermediate position.

That position,’ of” “eonrse, would be to enact, a full use -

_ immunity statute. (testimony and fruits), which would -

. have* minimized the perceived danger of immunity —

‘baths, with which they: had recent experience, without |

Jeaving the witness i in an exposed position as does the

:_ limited use provisidn. 3%

It was against this pcchincandl aid ales the hack- oe

"eatil of the above-discussed trend in state courts to -

’ approvelimited use restriction immunity, that Congress

. " e

28 A mie ae :

. .

= i . .

; 1

— 1868anacted t the first iia immunity. statute ap- .

plicable. to parties and witnesses in court and grand

jury proceedings. 15 Stat.37 (1868). In keeping with

the congressional determination to avoid further im;

‘munity baths, the 1868 law, like the 1862 Tpplacement

congressional immunity statute, was phrased to im- .°

munize the.actual testimony. As carried into the Re-

vised Statutes, R.S. 860; and litigated in Counselnian -

i Hitcheock it reads as follows:.

No pleading of a ‘party, nor any discovery or evi

- dence: obtained from a party or witness by.means

of a judicial proceeding in this or any foreign

- country, shall be given in evidence, or in any man-

‘ner used against him or his property or estate, in

: any court of the United States, in any criminal

-_ proceeding, or for the enforcement: of any penalty ~

or forfeiture: Provided, That this seetion shall —

_ not exem ss party or witness from prasecution —

: ane punishment for perjuxyy committed in discover-

. ing or testifying as aforesaid. .

ae: may be noted that in one respect the lenwas ge of the

-1868 law was different from the 1862 law, becduse of

the explicit: prohibition: against using the compelled

testimony ‘‘in any manner”’ against the witness:' This

language could have been a basis for arguing that Con-

_gress intended full -use immunity, 1.e., » prohibition

. - OF: derivative: use: of testimony, and not mere limited

use immunity. |

| B. Litigation and Briefs in Counselman

“ . Counselman v.- ‘Hitchcock marked a major turning :

point—and in. part a wrong turn—in Yhe ‘development

of immunity statute practice and theory. The case~

: arose when a grain shipper. refused to answer questions

before a federal grand jury investigating oo

rates and alleged rebates, despite the’ ean. “3

- vogation of the 1868 immunity statute (R.S. 860).

-. feleral circuit court refused. to release € ot te 8

from custody under this’ compulsory testimony law;

despite the argument that the limited immunity au- .-- :

~ thorized would not bar use of compelled testimony as

leads to other evidenge. In re Counselman, 44 Fed. 268

. €C.C.N.D. Til24890).’ thus ‘continued the dominant

trend of this era to. appiove limited immunity grants

and not to. worry about use of the “fruits”? of such

testimony. The. opinion indicates that what really | _

bothered this court about the ‘fruits’? doctrine was

that it would even bar the testimony of an eye witness

to murder, if the government would-not have known

of the eye witness except by illegally extracting a con- —

fession from the accused or tsing his immunized testi-

-mony.- | ba

The Supreme Court on aipeal 3 in » Comunelists ie

was confronted with an all or nothing situation, and se

had to reverse unless it was. willipg to support the _

- limited immunity concept. In reversing and rejecting -

limited use immunity the Court reached“a decision to

-which no one now seriously objects, and which can -

viewed as a proper disposition of that case.

But what was to be the basic rationale of this ‘deci-

sion: that the critical vice of R.S. 860 was that: it did

- not embrace the full use of immunity concept (barring

direct use and fruits), or that it did not go still further

and embrace an absolute immunity concept? On, this

_ question the Court received little help from the short S

circuit opinion, and little from the briefs of the parties. —

_ The brief of the appellant (defendant) in Counsel-

man placed heavy reliance on the three state cases, dis- .

“cussed extensively supra, which had rejected limited

* Oey

Me:

o °

; g

for full use Soret.

"se :

use immunity. . But these cases—Emery, N owell, and

Cullen from Massachusetts, New Hampshire, Virginia

respectively—were shown above ‘to be classifiable-.as

full use immunity cases which did not explicitly con-

sider the distinction between full use immunity, and

absolute immunity.- In his brief the appellant waffled

back and forth as to his real concern, saying variously -

that his positidn was: (1) that. an immunity. statute

. under which, the fruits of testimony could be used was

~ inadequate; (2) that only an-absolute immunity statute

could ‘be constitutional; (3) that no immunity statute

~ could be constitutional ecause the constitutional policy r ,

is that nb self-incriminating testimony shall ever be --

brought into existence. Brief for Appellent (Carter’s

Brief), pp. 26,:32-33, 42,57...

ve The briefs for the ‘eppdiion (the United States). also |

were conceptually weak and many-faceted. One. brief

relied on the constitutional efficacy of limited use im-

munity, a8 consistently upheld by lower federal courts

and a preponderance of the state courts, e.g., the oft-

quoted ‘New York opinion in People y. Kelly, discussed.

_ ~~ supra. Brief for Appellee (Attorney General Miller -

and Lambertson), p} pp. 10-15, 27. It made an ambiguous

- reference to the admissibility of independent evidence -

ssp Prineiple i in the law of confessions, which by analogy

“argues against the absolute immunity concept. Id. at -

p- 16. It.also fallaciously conceded that the Massachu-

_ setts, New Hampshire and Virginia cases (Emery, .

Nowell and Cullen discussed stpra) do require’ ab-

- solute immunity, and tried to explain them away by |

saying the state constitution ‘texts were broader than

- the Fifth Amendment. Id. at p. 25.- Actually these

eases, as analyzed supra, in this brief, rest on the need

> . ; .*° if . . -

NS : : *.

vistas wg wipe tit nan “

- Another brief for the appellee ambiguously referred

to a trial righ »mnder involuntary confession principles,

to exclude evidence derived, from irhmunized testimony -

- (thus hinting at full use restriction but not tying it to

, the Fifth Amendment as a- constitutional principle).

Supplemental Brief. for Appellee (Asst. Atty.. Gen.

Parker and Lambertson), p. 10.. It also suggested: that

_ B.S. .860 could be construed.as barring the use of the

“fruits” as well as the testimony itself, if required in -

. order te*be coextensive with .the Fifth Amendment, «

Id. at pp. 16-17. . This critical point however was:

‘buried in a sea of words and was overshadowed by the

pounding insisterice that mere limited use restriction °

“was enough. Tucked in as an afterthought was the

equally. important assertion. that the framers of the

Fifth Amendment had no thought of barring any con-~

aviction based on ‘independent testimony.’ But the point

_ was left ambiguous: 7.e., did ‘independent’? mean un-

tainted ; or did it mean inerely independent in the sense _

~ of being. provided ‘by. a person other than the im-

_ Munized witriess even’ though it-was-the immunized :

testimony which Ted the government to that person.

In sum, the briefs, in Counselman’ never“clarified the

true meaning of the earlier cases in Massachusetts, New

. Hampshire, Virginia. The Government’s main thrust

was the propgsition that the Fifth did not reach fruits;

hence a limited use immunity statute was all right. Thé

‘Government never developed adequately the concept of

truly independent testimony, and the consequent laek

of need for an absolute immunity concept. Handled as

an afterthqught was the suggestion*that R.S. 860 if.

~ need be could be read as a ‘‘use and fruits”’ statute, and °

__ this’suggestion was not maEESeet by a delineation of

"legislative b history.

See

Z pi this s background iti is not surprising that J us-

ties Blatchford’s opinion for. the Court in Counselman 7

v.. Hitchcock, although clear.on extending the Fifth

_ Amendment. to a witness.as well as to a party, was far

_. from.clear on the nature of the privilege itself, or on ©

the necessary scope of a constitutionally effective com-" -

_pulsory testimony a¢t. In particular the full use im-

_ munity concept was not clearly distinguished from the

. absolute immunity concept. . ee °

- Two things stand clearly i in 1 the Counselman opinion.

' The first is-the Court’s feeling—unlike the dominant :

trend in court degisions up to that time—that an im-

munity statute is insufficient to replace a pléa of the \

Fifth Amendmeft if it immunizes only direct usé of ’

testimony, and not the fruits. The Court’s forthright’ —

"statement on this point is found at 142. U.8.'564, where

the Court said that. R.S. 860 would not preven “the :

use of his ‘testimony: to search. out other testimony,” -

and hence was ‘‘not coextensive with the constitutional

- provision.’’- The-second is the Court’s interpretation

of R.S. 860 as only providing the former, insufficient,

protection, and not the latter.. The. opinion could. haye .

~ . stopped at this point, for the case was decided; but |

oS ustice Blatchford continued on.’

The bulk of his opinion consists of a Secnty pe ge re-

view of past state and federal cases, including the 9-3

state court split on the sufficiency. of limited use re-

striction immunity analyzed supra in this brief. He |

then summarized, and the first point was that the vari-

ous constitutional provisions including the Fifth |

ms ) _ Amendment, despite slight differences in wording, »

ought to have the ‘“‘same interpretation.”’ , And he said

| it would be a “reasonable construction’? to follow ‘the

iS On the preceding page Justice Blatchford had already ® |

“full use restriction iiaiaiey uot) of ‘uactctnetis

as laid down in cna és s Case which he qatted as fol-

lows: asi

the ited’ is sscclctad ‘*from sade ain to.

-discloge the.. , circumstances of his offense, : the

"sources from which, or the means by which, evi-

denée of its commission, or of his connection. with —

it, may be obtained, or made effectual for his con-_.

| nection, without ‘using his answers.as- direct: ad-

‘Missions. against him. jee 7

J ustice-; = closed his opinion with’ an addi.

three or four paragraphs, noting that ome states —

had satisfactorily replaced the privilege with absolute v

: diya statutes, It is here that *he added the com- _

‘ment which has been the cause of so “much confusion *

ever since, saying: Bee Bic Se pas eh

. In view of the Sonatitutioisil provision, a ciatatoky

‘enactment, to be valid, must afford absolute im- »

ery against, future prosecution: for the offense

which the question relates. «In this respect we |

ah our assent rather to the doctrine of Emery’s

Ziaes, | in Massachusetts, than to that of People v.

Kelly y, in New York.. 142 U.S. at 586.

‘Placed in context of the: loose language of: the Caien |

and the total opinion, this comment is understandable,

~ and does not.constitute a holding that even if R.S. 860°”. |

were broadened to encompass full use restriction im- . J

munity it. would ‘still be constitutionally insufficient.

approved the full use restriction concept. Significantly,

?. _« even in this last quoted comment he cited the doctrine of

Emery’s.Case (Commonwealth v. Emery, supra) asthe —

.one he was following; but that doctrine—as already —

shown. above~-is a full use, immunity doctrine, not an

* , 8

‘ .

“ea

. ‘-

: absolute immunity doctrine. And the ‘doctrine’ of

People v. Kelly, which-he was rejecting was a limited —

_~ use immunity doctrine. -

At best this last comment i is a puzzling dietum, and |

has been so labeled. Because the Court’s primary |

" -eoncern throughout its opinion was to get rid of R.S.

~ 860, on. the-ground that its limited use immunity for- | |

‘mula: was too.narrow, this comment is best viewed as

constitutional rhetoric, not a rising to the level, of oo

a considered dictum.

- Whether rhetoric or -Siatiiin J nitics Blatehtford’s ve

' . eomment ‘controlled the congressional reaction to: the:

demise of R.S. 860. Congress decided to “play it_

safe’? ** and in its next enactment went all the way to

.. absolute immunity language, and continued this prac-..

.. tice in additional énactments until it switched to full

_use restriction in 1970.18 U.S. C. §§ 6001-6005. ( 1970).

on -By, dominating ' our immunity statute practice for T5

years, the Blatchford.comment also dominated our con- -

stitutional thinking.

The absolute immunity statute whiah Pea en. : | .

. acted a year after Counselman was designed to. support

-° enforcement of -the. Interstate Commerce Act in court

4 - ‘or ICC proceedings (thus begiuning the -tradition. of .

ad hoe statutes rather'than a single ganeral imniunity

statute). ‘Sustained i in Brown y. Walker, 161 U.S. 591

_—___

. Of Federal Criminal Laws, Working Papers, ‘‘Comment on Im-

munity Provisions”’ (Dixon), vol. 2, PP. 1405.44, at 1423 (1970).

| 24 Comment of Judge Friendly in. Unif Sanitation Men.

- Association, Inc. v. Commissioner of Sanitation of the City of New. | |

: York, 426 F. 2d 619, 623 = Ge. 1970). | \ ae Ge

. . . ‘ r oe < a

- ~ a fw ia u : 4 : “ * e

LT METRO OR IEO Sy it amen PNM awry 8 a -e leis ann eS Seine

mi se arr . ati ROO OED AN ING SRT I a ™

« s :

: McKay, ‘Self Incriinination se the New Sideaas A 1967 Su.

°preme Court Review 193, at 229; National Commission on Reform:

ae (1896), it was pe in many sbseatiet statutes, fed- zs

eral * and state. Its operative wording is: . _ :

. no person shall be prosecuted or gnbjected to

_any y penalty or forfeiture for or on account of any ~* :

transaction, matter or thing, concerning which he

otherwise. . oo 27 Stat. 443° (1893). °

I. THE CONCLUSION THAT COUNSELMAN DOES NOT REQUIRE

_ ABSOLUTE IMMUNITY IS SUPPORTED NOT ONLY BY

' TORY AND LOGIC, ‘BUT ALSO oa ee ee

PRACTICE. :

It is the contention of the amicus curiae that Coiuneet- Pipes

' man Vv: Hitchcock, despite Justice Blatchford’ s terminal -

peroration, should be interpreted as a constitutional re-

_ quirement only for full use restriction 4mmunity—thus _

leaving thé question of absdlute immunity to legislative-

°+ _ executive choice in the light of law enforcement needs,: ‘

' DEEP ay on Ne SERENA EAS TRE

_ The correctness of this interpretation has already been - |

shown to be’ dictated by the Blatchford. opinion itself .

when taken as a whole, by the state precedents in states _

such as Massachusetts, New. Hampshire, and Virginia

on which Justide Blatchford was relying, by the logic ©

of the Fifth Amehdment itself, and by antecedent co-

2 lonial and English history, insofar as these distant :

- sources are relevant. The correctness of this interpre-

tation is also supported by consistent Canadian prac-

tice, and alsp vlad British practice, of*avoiding Saige th

“immunity. © 2

The English Parliament, like the KL ieiiipbis een (eee |

" .antil1970, has preferred to handle immunity on an

~ ad hoe hasis resultifg in several types of modification of |

the priv’ ege with different rr wordings, lead-

25 National cient on Reform of Bederal Criminal Laws, a

Working Papers, supra, vol, ‘2, PP. 1444-45 OM). ae

‘i A OPIS POPE IEDR LLM RDG SAECO IODIDE EE PRET AAR PEELE LOT ARCN Le EN FIO YATRA és

: _ the now repealed Bankruptey Act of 1890, 53 & 54°

) ee a ee ae en Be

ing one commentator a few years ago to observe that the

. “time has come for a rationalisation of all the relevant -

statutory provisions.’ The comme practice has

| been to bar only direct use of the testimony compelled |

(limited use immunity), an@ néither to bar use of the

- fruits of compelled testimony, nor to provide absolute

immunitp For example, the Theft Act of 1968 pro-

’ vides’ that. ‘‘no . statement: or’ -admission”’ compelled. -.

under the Act shéll ‘‘be.admissible in evidenee. against . )

, that perso et. . . against the wife or husband of that

person.” Theft Act of 1968, c. 60, §31. Similar. 3

‘limited use immunity provisions are found in the acts *

touching on, inter alia, election frauds, Representation

- of the People Act, 12, 13 & 14 Geo. 5, c. 68 § 123’ (1949),

and the repealed Larceny Act of 1916, 6 & T Geo. 5, ¢.°

50 § 43 (2) (3). The limited use immunity provision of “ae

.Viet., ¢. T1, § 27(2), is of special interest because it was :

~eoupled with § 27(1), repealing so much of § 85 of the

Larceny Act of 1861, 24 & 25 Vict., c7 96, as relieved’.

_ witnesses compulsorily examited in bankruptcy - pro-

- ceedings of liability to prosecution for certain misde-

_ meanors specified in the 1861 Act._Thus in the era of

| Counsélman, with its expansionist. absolute immunity -

| dictum, the Parliament’ was: getting . rid of a statute .

.’ Which was somewhat. broader in its’ wording than the

_.. English eustom of limited ‘use restriction. The, Army

Act and the Air Force Act likewise contain immunity .

provisions phrased as a limited use statute Cievidence

. given... shall not be admissible’) which would fal¥ .

far short’ of absolute unity even if liberally: con-

strited. to also bar e ‘fruits’ of such admissions.

aR, Cross, Evidence 233 (1958);

- “ ,

s a ghee « .

MONS ea “0

Act of 1955, 3 & 4 Eliz. 2,-. 19, §135,

"Army Act of 1955, 3 & 4 Elin. 3, ¢. 18, § 135; ‘Air Fores, e

a The Canadian immunity statute ‘Sandi, like the a

us developed English practice, has been to reject the abso- —

lute immunity congept and to authorize use Y restriction

through statutes which in terms offer only limited“ use

__ restriction, not barring use of the fruits: of the im- .

munized testimony. ‘There are a number of ad hoe

statutes,’ both dominion and provincial, with slightly. -

. © piitferent wording. Wigmore reports that such statutes

‘are enforced according to their terms, without regard

.,to their ‘possible inefficiency in removing all risk of

~ subsequent prosecution thr, h clues obtained.” See « |

8 Wigmore, Evidence, Sec. ‘2284, Pg 929; Sec. 2282 at

p. 508n.. For example, the Canada Evidence Act en-:

~ acted in 1892, the same year that ee v. Httch- es

cock was decided, reads as, follows:

No -witness shall be- axcused. rom acaweriile any’ A

_ question upon the ground that the answer to such ..

.,question may tend. to criminate him . . . [but] the

lace, | ; Can. Rey, Stat. ¢. 307, § 5.

ie The courts have turned. aside pleas te. give the statute a

full use restriction, rather than a limited ‘use restric-

- tion effect, refusing to. extend it to incriminating docu-.

‘ments involuntarily produced, . R. v. Simpson, [1943]. —

“ 3 DLR. 355 (0.A.), or to “fruits” of the ee :

: ——- Re winches: 38 D.L. R. 261, 264 BO. -

answer so given shall not be used by ‘receivable in.

vidence against hig in any criminal ffial, or other

— proceeding << ainst. him thereafter. taking i

a th

. {

ui J 40

& : . .

_. . THE CONSTITUTIONALITY AND EFFICACY OF FULL USE

: RESTRICTION IMMUNITY UNDER THE FIFTH AMENDMENT

-* of - IS SUPPORTED STRONGLY BY RECENT CASES OF THIS

COURT: AND THESE CASES RECOGNIZE THAT THE. STATE: |

MENT IN COUNSELMAN ON ABSOLUTE IMMUNITY WASAT

BEST A DICTUM ON AN ISSUE WHICH HAS NOT

PRESENTED TO THIS COURT UNTIL NOW. ;

The i issue of the constitutional efficacy of a full use ~ -

. _ ‘restriction immunity statute, in lieu of the.absolute im- ~~

munity gratuitously offered: ‘by Congress in all federal

immunity statutes enacted after 1893, remained in ©

- limbo for years. It finally was forced te the forefront,

: unavoidably, as a result of tlie nationalization of the’

. Fifth Amendment via the ‘‘incorporation doctrine” in .

‘Malloy v. Hogan, -378'U.S. 1 (1964). And the issue -

- was resolved in favor of the efficacy of full use restric-

_ tion immunity,in Murphy v.- Waterfront Commission,

_ New York Harbor, 378 U. S. 52 (1964)

te + Abstractly viewed, even under.a nationalized Fifth -

Amendment an absolute immunity concept could have ~

_ been regained (even though the concept is historieally -

_. unsupportable and generically illogical as already dis-

kussed), but only at the price of aborting all related.

prosecutions not only+in the irhmunizing - jurisdiction,

but also in all sister jurisdictions. . “Tris true that.a fed-.,

eral immunity may be phrased by Congress to override

state law enforcement policy and bar subsequent -state-

prosecution for an offense related to the words spoken

in the federal investigation. Adams.v. Maryland, 347

U.S. 179 ( 1956). The justification here,-: however, is

eongressional policy and federal supremacy.

It would | be startling to assert the proposition, that an

‘immunity bath’? process ‘ufider the absolute type.

- statute of some state, e.g., Nevada, should be allowed to,

abort a whole range of federal prosecutions for tax,

' vice, commerce’ violations, ‘ete., if the. prosecutions

—

" 41

"relate to'the words spoken in the state investigation, or

to =. fruits. And would it not eqfally be startling

to assert the same proposition regarding Nevada power - -

even itt regard to California law enforcement policy ?

- To avoid such a’spectacle the solution as worked out ~

. by the Coutt in Murphy'v. Waterfront Commission isto ° -

- requirement under the Fifth Amendment to protect

develop a full use restriction’ rule as a to protec le

reluctant witness from adverse impact of his compelled

testimony. Where there is no immunity sense but

. compulsion’ occurs, this. ‘““rule in Murphy’s case” op-_-

erates as an exclusionary rulé judicially imposed under

the Fifth Amendment. And the’Same rule should mark

’ the limits oe enreg owed to the reluctant ‘witness

)

when law enforcement needs make it necessary to re-

_ sort to. immunity statute procedure.

The precise holding in Murphy, “which a arose out of

an interstate compact-based state investigation of

' waterfront corruption, was that as a consequence of the —

- new ‘scope of the Fifth Amendment announced in.

Malloy v. Hogan, the federal government must, be

barred from prosecutorial use of the state-compelled

‘testimony .and its fruits.”? Although in “Murphy

there was a state immunity statute which by its terms.

- purported to exténd immunity concerning ‘any crimi-

nal. proceeding,” the Court did not rely on it for its

holding. (The statute had been enacted before Malloy

nationalized the Fifth.) Rather, the Court worked out.

_... ‘arule based on the Fifth Amendment itself, interpreted

in the context of the needs of the federaksystem. . --

od ustice Goldberg phrased the holding of the Court as —

follows: 5 ; f

... we hold the aopatitubional rule a ba that a

state witness may not he-compelled to give testi- _.

a) : _°

‘ ‘

a ERA ALR AN EE oe SR ae Na ‘

| a, “42 Yiak

mony which. may be eniihiaating under federal

law. unless the compelled testimony and its fruits

- eannot be used in any mariner by federal officials —

in connection With a criminal prosecution against

him. We.conclnde moreover, that in order fo im~

"plement this co titutional rule and accominodate

the interest of the State and Federal Governments

in investigating and prosecuting crime, the Federal

Government must be prohibited from ‘making any

‘such use of compelled testimony and ‘its fruits.

(378 U.S. at 79.) (Emphasis added. )-

. Justice Goldberg’s footnote for this natewonk fur-

ther explaining his. meaning, reads as follows:

“we

* ~ fied, under a state grant of immunity, to matters. :

related to the federal prosecution, the federal au-

thorities have the burden, of showing that its ev

' dence is not tainted by establishing that it had u)

independent, legitimate source for the disput

evidehog ef bid.) - a .

“J ustice- White, concurring, made : a similar but more ©

expliait statement concerning the scope of the constitu-

tionally required protection i in this situation: He said: .

The Constitution does notequire that intymnity

go so far as to protect against all prosecutions to

which the testimohy relates, including prosecutions

of another government; whether or not there is any

_ causal connection between fhe disclosure and the

| prosecution or evidence offered at trial. In my

view it is possible for a federal prosecution to be ,

[pased on untainted evidence after a grant of fed-.

eral. immunity i in exchange for testimony in a fed-

eral criminal jnvestigation. . Likewise it is possible

that extorination gathered by a state government —

which has. an-important but wholly separate pur-

pose in conducting the investigation and no inter-.

est in any meus catia tae will not in any man-

Ce — —_

ner be used i in subsequent federal. ‘proceedings, at .

least ‘‘while this court sits?’ to review invalid con- °

victions. Panhandle Oil-Co. v. State of Miss. e

rel. Knox, 277 U.S. 218, at 223, 48 S. Ct. 451, 7

‘ L.Ed. 857 (Holmes, dissenting). Itis preciseli\,

\ this foe thet of a ‘prosecution based on untainted

. evidence that we must recognize. For if it is mean-

_ '.ingful to say that the Federal Goyernmenit may not

~~ use compelled testimony to convict a witness of a

federal crime, then, of eourse, the *Constitution

permits the State to ‘compel such testimony ....\I_-..

believe the State may compel -testimony incrimi-.

nating under federal law, but the Federal Govern-

ment may not use such testimony or its fruits in a

federal crjminal proceeding. Immunity must-be as .

_ broad ag, but not harmfully and wasteftilly broader

than, th privilege against self-incrimination.

(318 U.S. at 106-107. ) (Emphasis added. ) e

- After this breakthrough i in M urphy, venpnsive to the

difficulties with absolute immunity in a federal system,

ang also having the effect of. restoring the Fifth Amend-:

ment to the realm of rational discussion, developments.

on,use immunity followed rapidly: It was perceived

that full use immunity was really the same as the fa-

~ miliar exclusionary rule which hasbeen our constitu-—

tional safeguard in the coerced confession line of eases

from Brown vy. Mississippi, 297 U.S. 278 (1936) down |

through Miranda v. Arizona, 384 U.S. 436. (1966) and

_ on to the present. It is thésame rule which has. gui ed

search and seizure litigation in federal courts since

Weeks v. United States, 232 U.S. 383 (1914), and \in

_all courts since Mapp v. Ohio, 367 U.S. 643. (1961). The:

exclusionary rule also governs the still-developing liti- .

gation concerning unauthorized electronic eavesdrop- . —

ping, Alderman v. United States, 394 U.S. 165 (1969).

_ ‘The use restrictiongoncept has enabled the Court to

make sense Sat of the delicate balance. of individual

_ and soins interest concerning dismissal of public em- -

7 ployees who block inquiries into their discharge of

their public trust by pleading self-incrimination.: A

. public, employee may not be coerced into incriminating

‘< himself by threat of discharge if he remains silent,

Garrity v. New Jersey, 383°U.S. 493 (1967), and may ©

- not be coerced ‘by threat of discharge into signing a

waiver of immunity against subsequent criminal prose-

cuition. Gardner v. Broderick, 392 U.S. 273 (1968), and. |

Uniformed Sanitation Men Association v. Commis-

sioner of Sanitation, 392 U.S. 280 (1968). Noncoop-

erative conduct in the face of such inquiries, however,

hardly qualifies as a certificate of merit. Hence Justice

Fortas in his separate comment on Garrity, 385 U.S. at

519, and i in his opinion for the Court in Gardner ‘and

U niformed Men worked out the proposition that-a_

- Fifth Amendment pleading public employee who is im-

_maunized against incriminating use-of his answers may _

be dismissed. He phrased the constitutional principles

as follows, i in Gardner; *

- ‘Answers may | be compelled regardless. of the privi- .-

’, lege if there is immunity from federal and state

- use of the compelled testimony or its fruits in con-

‘nection with a criminal prosecution against the

person testifying’ 392 U. S. at 276.

If appellant, a policeman, had refused ae .

X\ questions specifically, directly, and ‘narrowly re-

lating to the ‘performance of his official duties,

‘without being retired to waive his immunity with

- respect to the use of hig answers or the fruits. °

' thereof in a criminal prosecution of himself, Gar-

’ rity v. State of New Jersey, supra, the privilege

against self-incrimination would not have been ay"

bar to his dismissal. - 392 U.S. at 278.

This explicit dictunr of the Court in Gardner and

U niformed M en came to fruition on remand i ina ruling :

of the Court of Appeals for the Second Circuit support-

img ptiblic discharges of certain New York City em-

_ployees. The. court said that ‘‘ ‘use immunity’ suffices

for the dischargé of public employees who ‘refuse to

account for their performance of their public trust.’ ”’

Uniformed Sanitation Men Association, Inc. v. Com- .

- missioner of Sanitation of the City of New York, 426

-—F.2d 619 at 626 (2d Gir. 1970) ; accord, Silverio v..Mu- ~— 7)

nicipal Court, 247 N.E.2d 810, cert-detied, 396 U.S.

878 (1969). )

To similar’ effect on. Fifth Amendment theory is the

subsequent development and clarification of Speyack v. -

Klein, 385 U.S. 511 (1967) in which the Court hefi that

‘an attorney who was thé subject of an ambulance-chas-

ing investigation could not be. disbarred for-pleading

. self-incrimination and refusing to testify and produce

‘his financial records. A review of post-Spevack cases -

in New York‘indicates that the holding is limited to -

those rare situations where there is no independent evi-. _

dence of misconduct-on the part of the. licensee, and the

. -lieensee“has merely refused to answer questions. by.

pleading the Fifth Amendment. In short, there is a.

—‘use-restriction. effect, not exoneration.. ‘Franck, ‘‘The . -

Myth of Spevack v. Klein,” 54 A.B.J.A. 970 (1968)s

. Nothing here supports the argument that absolute im-.

munity, rather than full use restriction, is 3s needed to

- ° overcome a claim of the Fifth.

To be sure, because the landmark M sgh ruling

came in a case which was technically not an immunity.

statute case as handled, the Court has on occasion noted

that the ultimate: meaning of Counselman. v. Hitchcock. |

“may still be open... But these comments really express

~ little more than a decent respect’for the principles of

standing, and ratio.decidendi. For example in Stevens

ro . . 5

2 5 . : . .

- ' 7 ° a °

- a. . . ‘. ” .

~~~

we M orks; 383 U.S. 234 (1966) aia was a narrow-ease

concerning only capacity to withdraw a ‘‘waiver” of —

the Fifth Amendment and immunity, the Court said it

was ‘not reaching’ the distinction between full.use im- -

munity and absolute ‘iumunity. .

— os a ee eee iunapen Snafu

However, i in the same ne term sr the-Courtin United

States v. Blue, 384.U.S. 251 (1966), the Court said that

if the government had’ acquired evidence in. violation

of the Fifth Amendment, the remedy would be to. sup-

. press the evidence and its fruits, not to dismiss the in-

~——-dictment, as requested by Blue. The opinion of Justice __

‘Harlan for a unanimous Court contains this comment: _.

_ “So drastic a step [barring prosecution altogether] . .

. might advance marginally some of the ends served by.

the exclusionary rules, but it would also increase to an |

intolerable degree interference with the publie interest “®

in having the guilty brought to book.’? 384 U.S. at

“See algo: on testimonial use restriction in an .

us search and seizure situation Simmons Vv.

United States; 390 U.S. 377 (1968). The only recent

repetition of the Counselman dictum came before _

Stevens and Blue in a case in which the distinction be-

_—__tween full use immunity and-absolute immunity was

not in issue, or discussed. In Albertson v. Subversive

Activities Control Board, 382 U.S. 70 (1965), the Court

struck down a patently irisufficient immunity statuté of

-™the limited use variety, and it is clear that its holding :

was that an immunity provision which does not bar

fruits too is unconstitutional. :

| Even more significantly, the 968 “Bookie Tak” ans

_> - Gun Registration cases virtually approve’sub silentio

the. principle that an exclusionary rule in the form of a -

full use restriction immunity statute is adequate to _

preserve the interest safeguarded by the Fifth Amend-

aries DDO yet METI Ps ERNE RIO OPH 5ST REALE REIL LOO EIS GL e RETF DRT OO

ment. Marchetti v. United States, 390 U.S. 39 (1968),

Grosso v. United States, 390 U.S. 62 (1968), Haynes-v.

Umited States, 390 U.S. 85 (1968).. The Government ..

. - urged thé Court to save the registration requirements

at issue by judicially imposing a use-restriction, as in

Murphy. The Court said the suggestion was ‘‘in prin- ~

ciple an attractive and apparently practical resolution .

_ of the difficult problem before us.”’ Grosso, supra, at

60. However, the Court rejected the suggestion on

statutory interpretation. grounds, noting the clear‘in-

tent of Congress that gambler registration information .— :

be made available to statgand federal prosecutors. The.

Court was willing to adopt: use restriction, but. could

not do so because the statute itself actually encouraged «= .

promulgation of the incriminatory information.

The use restriction dictum in these cases came » to

fruition in [United States. v. Freed, 91 8.Ct. 1112.

(1971), when the Court sustained the redrafted fire-

-. arms registration statute. Under the new act the

\, registratidn is accomplished by the transferor, but he

. -

_—

must provide the photograph and fingerprints of the

transferee. However, the information filed is not |

to be disclosed ‘to any law enforcement agency; and. -

there is an immunity provision barring use of the

information or its fruits against a registrant or appli-

cant to prove offenses prior to or concurrent with regis-

tration. Justice Douglas for the Court said that the

* nondisclosure provision, ‘‘combined with the protection

against use .. . satisfies the Fifth Amendment.” 91

S.Ct. at 1117. Be. did append a eryptic footnote pur-

7 porting not to reach the question of full use immunity

as opposed to absolute (“‘transhctional’’) immunity be-

cause under the act“‘the hazards of self-incrimination

are not real.’’ .Registration, however, could be accom-

~ a?

- plished by deception, and administrative. nondisclosure

| provisions.can be a leaky sieve. The crucial reason the —

hazard is ‘‘not real’’ is the existence of ‘the full ufe

’ immunity provision; which plugs the leak even if there

be one. ‘It is difficult to believe the Court would have

upheld the new firearm: registration law without the

immunity provision.

. That the immunity provision was is crucial} i is sadiaated |

_ byJd ustice Brennan’s concurring opinion. He doubted

that.there was much possibility of federal-self-incrim-

ination, provided the registration was “‘effective,’’ but

did see a possibility of self-incrimination under Cali-

fornia’s law outlawing possession of *hand grenades. ve

As to this latter danger he said that the “‘immunity Ye

provision suffices to supplant the constitutional protec- |

tion.’? 91 S.Ct. at 1119. His footnote comment at this

point saying that absolute (‘‘transactional’’) ijgmunity

was not involved because the self-incrimination danger

‘ was under the law of another jurisdiction—which en-

. visions two-levels of immunity statute stringency under

one Fifth Amendment—will be dealt with in a secsmsaniad

section, infra. —

Vi FULL USE DOSURITY 18 CONSISTENT WITH THE DEVEL-

- OPED PURPOSES OF THE FIFTH AMENDMENT, AND IS. .

. URGENTLY NEEDED FOR EFFECTIVE POLICING OF THE |

. GROWING CATEGORIES OF CRIME CHARACTERIZED BY A

WEB OF INTERLOCKING ILLEGAL AGREEMENTS AMONG

Se ee ee ee |

‘ORGANIZED CRIME.

* IX Isamunity dnd the’Policy of the Fifth Amendment

_ It would extend the brief unduly to embark on an ex-

tensive discudsion of the various supposed “policy”

_bases for the privilege, and the purposes, it is | ed -

to serve. Virtually all of the major views pro and con

on an expansive reading of the privilege are reviewed 4

\ =. and driticized in exténso in Wigmore, and the current —

“2: ~“$writings have recently been collated and evaluated.”

"oA McCormick, McNaughton, Wigmore and others™ sug-

€ _ gest that the problem.of physical coercion of witnesses:

\ “is now safeguarded by due process, that the problem of

- -\. ‘political dissent is now ‘ safeguarded by the First -

\j _ + * Amendment, that a whole cluster of clauses in the Bill °.

ef Rights safeguard the core of the ‘‘accusatorial”’

.“ method of law enforcement as distinct from the inquisi- _

torial thethod, and that what is now-left for the Fifth

* Amendment—although - still very important—is’ of

somewhat smaller compass n the romantic seveh- .

teenth ¢ tury aura which still surrounds it.

oe \ , ©. «Bp paraphrase ; a comment made in a similar connee-

| , ‘tion, the present danger is not so much that the values

\.° Yemaining inthe Fifth will be subjected to ‘‘the erosion

\ of plausible exceptioris, ’? 2 as that these values will be

' .expanded by a process of :plausible additions to offer ;

‘gratuities to crime. The essential value inhering i in the

Fifth Amendment—and it is an elemental and precious -

value—is that an offender shall not be forced\py con-

tempt process or other pressure to help convict imself, ‘

or as oe: more liberal =< —— in the last

ase Sig aot AN ahah cea aaalibadli a UE A IN ncdtaniewemit so aa)

mg ‘Wigmore, Saglenon: § 2952 (McNaughton rev. “sti; ;

a . ... Friendly, ‘‘The Fifth Amendment Tomorrow : The Case for Consti-. .

sea. - tutional Change,”’ ‘37 U..Cin. L. Rev. 671, -679-95 © (1968).

4 a 8 McCormick, “Law of the Future: Evidence,” 51 Nw. U. L.

: ._, Rey, 218 221-22 (1956); McNaughton, ‘‘The Privilege Against

; . SelfIne ination,?’ 51 J. Crim. L. C. and\P. 8.138 (1960).

J Wigtiore’s: views are summarized by’. McNaugh in 8 - Wigmore, :

a. Evidence, § 2251 n. 1 (McNaughton rev. 1961). ‘Nee also Mayers,

a _. swpra note 3, and Friendly, supra, note 27. —

eae pa * Book Review of Majer, Shall We Amend the i ih Amend.

& fe ment?, 9 J. ses a ) 7

: sci Por Hs

tae ‘century phrase it—to furnish evidence against ] himself

involuntarily in-a criminal matter. See discussion

supra of Emery’s Case, State v. Nowell, Cullen v. Atad

monwealth. - :

; This value obviously 3 is not well actaa by. a limited Me .

fuse immunity statute, of the sort traditionally em- ...

of the compelled testimony—the kind of statute at issue

Zicarelli, and at issue in-the cases resting on the new

| .| Kastigar 'v. United States, 440 F.2d 95T (1971), cert.

“granted, 39 U.S.L.W. 3511 (US., May 17, 1971). This

value is wastefully served by a process, of: everkill in

_. the absolute immynity statutes which Congress wgs in- .

duced to enact by: the Counselman. dictum discyssed .

, and still employed, in England ‘and’ Canada

_. which does not immunize the fruits of the compelled :

isclosure, This value is fully served by a full tse im-

ity statute covering both direct and derivative use

ie general federal immunity statute enacted in 1970, 18. |

/U.8.C.*§§ 6001-6005. Stewart v. United, States. ‘dnd Pg

: supra, which Congress repealed and replaced. with: full

use restriction in 1970. Absolute (‘transactional’) _

‘immunity does: not merely ‘safeguard .a :person from

furnishing incriminating evidence against himself. It

. pardons him wholly. for any offense related to his testi-.

mony; without any regard for the possible existénce of

’ a Verifiable case against him based op-Wholly: independ-

ent evidence. It is wholly out of(line with! the exclu-.

sionary rules which safeguard all other constitutio

. ally-under-girded evidence priticiples derived from the’

common law,.é.g:, search: and seizure and coerced con-

fessions. See

As J ustice Holmes has said, general propositions a6

not solve concrete cases. History and logic carry us

‘only so far. The history se the self-inerimination privi-

e a e . . ~

. - e ad

2 : :

- rie e : j

b _— : — a c ET ee Ro

cued Doadadiasdeista seme eal ; amen

, .

. 2 a

: lege’ stint ‘ambigenotialy eithe cia limited, use im- ae i

munity (only testimony immmnized ), which is the’ Eng-.

- lish and Canadian practice, or toward: full use-restric-.

tion immunity (testimony and fruits),.which was the

basis of ‘the more liberal state decisions on which the °

"Court relied in Counselman. The logic of t Fifth

ndment is not satisfied with limited use imMunity ;

ictates fll use immunity, like the current New Jer-

y statute atissue in Zicarelli, and the 1970 federal

itness immunity statute, 18 U.S.C, §§ 6001-6005. The

logic of the Fifth Amendment is actually offended by an

obsptute immunity concept: why pardon a person for

unknown crimes, or known crimes for. which you al- |

ready have adequate proof? Absolute immunity stat- . .

- utes also pose.a problem of moral values, because their |

effect is to absolve a person of moral culpability with-

- out any voluntary ‘“regenexate” act on his part; full

use restriction retains. our moral values concerning

actual or putative legal guilt, even if eae, orate evi-

‘dence. is required for proof.

+ Immunity tn the Context of Historical ee fing

Development and Need =

- When we move from the general to the particular .

ee and .place immunity legislation in the context. of the

_ modern crime picture, the case. for full-use restriction

immunity beepmes overpowering. Ordinary crime, |

street crime, t

conventional common. law offertses, are

’ really of liffle concern to ‘immunity legislation. Con- °

vent ndl law enforcement techniques. of patrol and

questioning, as augmented by the modern crime abora- Ly

‘tory, are our main reliance. It is when we niove to

multi-party offenses, often conspiratorial i in nature and

— technique f is — And gs are the very.

areas where a wide and easual use of the pardon power

(absolute immunity) would be most reprehensible.

- The need for immunity statutes has passed: through ; 3

‘several phases. In the first place the need for them

would not be great under any cireumstance until the

common law privilege against compulsory self-incrimi-

sophistication and breadth, and became undergirded

with constitutional compulsion. This took a surpris-.

ingly long time—not until 1892 for the federal govern-

ment.

In the-seeond place the ‘need was not ‘great’ so Tong:

as crimes were relatively simple, and regulatory ad-

‘ ministration had not developed significantly... _Many

early immunity statutes are found in the context of -

_. investigations of official corruption in the liquor busi-

- ness ® or in legislative bodies." Offenses of this sort —

are not disclosed’/by eye witnesses and evidentiary ~

traces. such as fingerprints. These offenses are often, | :

sonspiratorial in nature, operating through a series of .

_ illegal understandings among several people, and re-

_ quire an extensive interrogation technique to uncover. »

% See, ¢.g., Rimery’s Case, supra, investigation of bribery ‘and

corruption in the state.police ; State v. Nowell, supra, liquor busi-

. ess, Other major categories are: found on’ analysis to involve -

_peripheral use of immunity cor septs in civil litigation arising out

of usury,, insolvency, and judgment debts, where disclosures -rele-,.

~ yvantt to the civil suit were protected, fot instance; against subse-.

.. quent use in fraud’ prosecutions. See: Wigmore, supra, § 2283 .

n. 2. : xh re. : f- y : e ;

"- \ a People v. Kelly, supra, acceptance of money by New York City:

- gouneilmen to-influence their votes. ‘As discussed supra, the first

. \ federal immunity statute, 11 Stat, 155 (1857), was enacted in sup-

port of & congressional investigation of alleged sale of legislative = °

As J ustice White stein it in M wrphy v. ee

= uch statutes have for. more ‘ah’ a ebabuey been

resorted to for the investigation of many offenses. —

’*. Chiefly; those whose proof and punishment were

otherwise impractical, such as political bribery, ex-

’ tortion, gambling, consumer frauds, liquor viola-

tions, and racketeering. . 378 U.S. 52 4964), con-

eurring — cat P. 94.

Third, as jst based on interrelated illegal under-

standings and. operations increased markedly with the

rise of regulatory administration exemplified by the —

Interstate Commerce: Commission and other federal

and state commissions, the need became pinpointed and —

immunity statutes flowered. On an ad hoc basis im-

munity provisions -were inserted -in virtually every —

major’ federal regulatory act from 1893 to. 1970, at.

which time Congress ‘replaced the hodgepodge -of im-

munity legislation with an integrated general immunity

statute. 18 U.S. C. §§ 6001-6005 (1970). 7a

. Fourth, the increasing ‘tendency i in Vieo and related

or fields for businesses to: ‘operate on the edge | of the law

“or outside the law—developing into the colossus we now

call organized crime——greatly increased the number of.

_ offenses resting on a complex web of illegal understand-

_ ings. In the area of white collar crime, particularly,

- violations often are difficult! to detect except through

“4 interrogation techniques which may induce a plea of ¢ the

Fifth, and a consequent need to desist or immunize."

‘oe ee

nie lations, consumer fraud, and other white collar crimes; and the

_- need for interrogation. without risking immunity~ baths, see Edel-

hertz (National Institute of Law Enforcementand Criminal Jus-

tice), The Nature, Impact and Treen ) White Coter, ‘Crime

° 85, 89, 42, 69. —

= Regarding difficulties in detection and. proof of antitrust vio-

poo.

_ And’ in that. special area of ‘white collar’’ crime

~ which we call organized crime, whose influence ranges

from an ordered assault, which may have been the

derlying basis for Piccirillo v. New York, 400 U.S,

(1971) through. “polite” society to controlling

‘unions, businesses, public elections and some govern-

. ments, such techniques as immunity statutes and court-

i ordered eavesdropping have been shown to be especially

effective law enforcement techniques.“ If organized

crime is not curbed #atiqnafly, such truly fundamental —

constitutional values as a fair election, a fair count, and .

_ fair representation would become a mockery.

| The American Civil Libertiés Union, although funda-

mentally taking a position against any. immunity stat-

| ute; perceived this point in testimony in House hear-

ings on the federal immunity: bill in 1970. The A.C.-

L.U. conceded, that there were special problem situa-

_tions in law enforcement where the immunity technique

could be meritorious: ‘“‘One might decide it is worth it

in the area of organized :crime. where the terroristic

- methods of the criminal organization or the reluctance

_. of witnesses to*give.evidence, makes prosecution diffi-

the Juditiary, House of Representatives, 91st. coe. %

Ast, Sess. Aug. 7, 1969, p.-81. :

., -enlt.”?. Hearings; Subcommittee No. 3, Committee on . —

Fifth, ‘to "this category. of sorpiratorial critties |

marked by “terroristic méthods,’’ we must now add the

offenses of politically motivated violence by some dissi-

_ dent groups determined to bring the ‘‘Establishment”’ __

to its.knees. In theory, if not i in peonmabyaner nea -

Rates story indicating that the new tools of law enforcement

have increased prosecutions aimed at gambling operations of or-

ganized crime. N. Y. Times, June‘7, 1971, p. 26, cols. 3-6.

LA DORRED OO pr mee ty

55 |

‘this development: thyrks back - to nineteenth century

. European anarchism. ‘The -continium action ranges

from spasmodic hit and run attacks, bombings, killings

. of public servants, wanton destruction of property, to « .

_ organized. guerrilla taetics aimed to shut down public ~

. facilities. Such actions ‘completely transcend any level

_ of permissible political dissent protected by the First .

Amendment. This i is not the tradition of “Freeborn -

- John’’ Lilburne. ~~ .

' Such Uisparate gf ‘oups as the 2 policeman and the 3 re- .

searcher. on the college campus may have more to fear .

from this source than from organized crime. Between

January I, 1969, and April 15, 1970 there were a total

of 4,330 explosive and. incendiary bombings in the

United States. Hearings, Permanent Subcommittee on

Invéstigations, Committee on Government Operations,

United States Senate, 91st Cong. Second Sess. Part 24

p. 5341. Since that period, the capitol of the United

States has been bombed, and since January of .1969, 51 —

federal buildings in this country have been bombed, .

resulting in one death. Washington Post»March 1l, _

‘1971, p. 3, col. 2. At least 18 policemen nationwide were -

‘killed in terroristic attacks in 1970, . cenit M Magazine |

November 13, 1970, p. 36D. HO -

In terroristic crime’ situations associated with joss:.

of life, whether caused by organized crime or by polit-

ically-motivated violence, the prosecutor understand-

ably may hesitate-to offer immunity to any witness if

the price is an immunity bath, ratfKer than full use re-

_ . striction. "And yet a “rule or ruin” type of crime .

rooted in an-ends justifies the means philosophy .re-_

quires responsible law enforcement of the most sophisti- .

cated sort, ‘ineluding extensive use of the. a :

technique.

56 : a ie

There has been some recent concern about what might

seem to be’ an undue extension of powers of investiga-

tory ‘bodies over reluctant witnesses, especially those —

- associated with unpopular causes or extreme political

“* views. However, a mere shift from absolute immunity ~

to full use restriction immunity would not have appre- .

ciable impact on the kinds of abuses charged to some

investigating committees in the 1950’s and early 1960’s.

There the crucial problem was the legitimacy of the in-.

vestigation and the relevance of the information sought

~ to any legitimate governmental purpose, and there was

no judicial supervision of the sort- available, in im- —

munity practice. The activities being investigated-in —

the Fifties were unassociated with the kinds of acts of

criminal violence which are the target of @irrent in-

vestigation. And of course a disposition toward. total

dissent and noncooperation cannot be overcome either. .

_ by full use immunity or: absolute immunity.

“Most law aciccomnnes in ‘both the accusatorial and

inquisitorial systems starts with asking a question, the

distinction being that in the former ‘system there are

restraints on browbeating the defendant himself, but

"not a hands-off policy on all witnesses. The more sub-

terrahean and complex an.offense category becomes,

involving multiple understandings among numerous .

_ people, the more vital becomes the process of interro-:

gation as a law enforcement technique for social —

. ‘defense.

$4 See. Watkins v. United states, ' 354.U.S. 178 (1957) ; Sweeey vo

New Hampshire, 354 U.S. 234 (1957) ; Deutch v. United ‘States, 367

U.S. 456 (1961) ; Russell v. United Stgtés, 369 U.S. 749 (1962) ;

Gibson v. Florida Legislative Investigation Committee, 372.U.S. |

. 539 (1963); see also Barenblatt ‘v. United States, 360 U.S, 109

(1959) and _— v. Wyman, 360 U. S. 72 (1959).

2% | 87 ae ee

i | vi. IMPLEMENTATION ‘PROBLEMS ARE NOT MORE SERIOUS

‘ 4 | -IN USE IMMUNITY THAN IN ABSOLUTE IMMUNITY: IF _

. ANYTHING, IMPLEMENTATION CONSIDERATIONS POINT

_ TOWARD UTILIZATION OF FULL USE RESTRICTION STAT-

: UTES RATHER THAN ABSOLUTE rene STATUTES.

*"". AL Practical Problems and Perspectives he

. in Implementing Immunity | ana ty

- Several observations, may be madeé concerning the

practicalities of fal fon of whetber it poo leading

up to. the larger question of whether it poses: undue

dangers for. the witness. .

First, it can be observéd that a conversion from. abso-

lute immunity, to full use restriction immunity will

avoid the litigation that occurs’ under absolute im-

munity on the issue of “‘relatedness.’”’ To qualify for.

protection even under absolute immunity a person must

show that his subsequent prosecution is related to. his

prior testimony. Because federal grand juries. were.

not equipped with broad immunity. authority. until re-

cently, and because’ immunity grants are relatively.

rare among administrative agencies, there has been

| <>. little opportunity for federal litigation on. this point.

- But Piccirillo v. New York, 400 U.S. 548 (writ of certi- -

4 orari disinissed, 1971) indicates the ‘difficulties which

_°. . gan arise. As discussed more fully infra in Subsection .

C, the New York court and some.members of this .

Court disagreed on the question whether the witness’ .

testimony on assault and criminal conspiracy was suf-

| 9... fieiently\related to a bribery indictment ‘handed down

* by the same grand jury to qualify for immunity. And =>

£ on this isstie the burden of proof rests on the witness. _

_ Further, it the “relatedness” issue in absolute im-

’ munity is handled by resolving all’ doubts in~favor of

the witness, which would he consistent with the general

areata on — issues morn: the Fifth Amend-_

‘

58 Ot«‘

ment such as the tendency to incriminate doctrine, other

dangers arise. Organized crime figures could ‘then

_ “bathe” in a ban: against prosecution. for crimes re-

motely related to their testimony, and for which ‘the.

» government has prior, concurrent, or subsequent inde;

“4 bd ; 3 5.

pendent, proof. Such an immunity would seem to ben’

wastefully broader than. is required’ by the spirit of

our accusatorial system. By contrast, ‘a use restriction

formula can be, and indeed should be, construed broadly

in favor of the witness in all doubtful cases, without

‘ ereating the automatic immunity bath which flows from

_ gthe absolute’ immunity concept. ; ae

e e .

‘Second, more complete and more truthful disclosure

may result if full use immunity rather than absolute

_. immunity is: employed. Under absolute, immunity a

_ witness gets immunity whether he tells the truth or

- -npt, so long as he created a ‘‘relationship.’’ He thus

has litt¥e incentive to tell very much, or to tell it'truth- -

fully, bearing in mind that‘ proof of perjury is difficult..

‘Under full use immunity, the more he discloses the

" greater likel{hood there is that something he says will .

provide a basis for arguing later that his testimony. —

provided a lead. from which.the government could have,

ie derived its ‘ind pendent’”’ testimony. Thus, from the

witness’ standpoint, the more he says—and it must be

truthful to be ‘effective—the heavier he makes the gov-

ernment’s burden to show a non-derivative, wholly —

. jndependentssource.. gree 5 at

_ ‘Phird,.dén the negative side it might be argued that —

- full use restriction immunity may discourage testimony

because the possibility of a future prosecution still re-

- mains. But on-analysis this assertion falls apart. The

witness will face contempt if he refuses to accept full.

~ yse immunity. As just noted, the more he says the —

OLR POTATO

Sept asia

more likely is he to make prosecution on an independ-

ent evidence theory impossible. .The public benefits,

and the witness is fully protected. Under these condi-

tions it would not be expected that subsequent’ ‘prosecu-" ee

- tions will occur as a matter of course, but where they .

do oceur (on.a showing of independent evidence) they

will be uvnlly mgnitionnt, because of the yES of |

crime involved. - ;

Fourth, if shintads ‘init were the only'y way a

_legislature could constitutionally provide this necessary

‘avenue to obtaining evidence, two further consequences,

both disadvantageous to the fair administration of jus-.

tice would follow, one touching on equal protection

values, the other touching on the need to discourage in-

ducémients to untruthful testimony. Regarding equal —

. protection, it is of course inherent in the immunity .

process that the immunized testimony gotten. from:one

offender may be used to build a case against another

offender. This is often the only way to ‘‘crack’’ some

group crimes. This differential treatment of the two

'_-offenders is maximal under an absolute immunity stat- —

_ ‘ute because the one immunized obtains a complete par-

- don while the other may go to jail. Under full: use re-«

striction the possibility of conviction under independ-

-- . ent testimony remains, and the degree of ‘‘inequality”’

is lessened... Regarding the interest in truthful testi. _

mony, under an absolute immunity concept, the prose-

- eution is empowered -to offer the maximum induce-

ment—a pardon—for-. favorable testimany. In some

cases such excessive. immunity aight be expected to

produce testimony: more helpful to the state than sin-

‘ cerity ‘would oe:

| " B. Rifectivenses of Full Use Restriction Immunity

‘We come now to what is probably the duptioie issue

~ eoncerning full use restriction immunity: will it ade- —

quately safeguard the witness, or will the difficulties of

policing it prove to be so great that the use “restriction.

becomes an illusory promise? The short afiswer,. of -

course, is t6 refer tothe areas of confessions and: search

and seizure where the exclusionary rule already is a.

_ part of our constitutional system. There is no reason

* to assume that judicial policing of. the exclusionary

rule will suddenly. fail when it takes the form of a full

use restriction immunity statute. In policing the fruit

‘of the poisonous - tree doctrine in the area of illegal

_ search and seizure, and, illegal electronic eavesdropping,

'.the Court has had long experience in ascertaining what —

" is and what is not ‘independent”’ evidence. There has

. never. been .a suggestion that the only way to resolve. -

all possible doubts is to grant a pardon for any offenses

which may. be related to the illegally acquired evidence. ;

Indeed, the policing of a full use immunity provision oy,

_, will actually ‘be easier than policing the equivalent. ex-

~ elusionary rule in the search and seizure area. There

_ will be a. known, overt, pin-pointed point in time when

the witness will have made~certain. easily verifiable

- disclosures. “No evidence obtained before that point

- in time should beexcluded, and yet that is precisely the —

_ effect of the absolute immunity concept. Nor should _

any evidence existing concurrent or after that point in -

Pree: ‘be exgluded either—unless there is taint. :

- Regarding such eéncurrent or’ ‘subsequent evidence,

and even the prior-acquired evidence, the government.

_ should be and will be under an affirmative constitutional

" duty of showing that the source is ‘‘iridependent. ade

.. Thus, it is imrnaterial whether or not a given i immpnity —

og eS, ° aio a ii

”

Pee ee ee

"-. statute itself contains any burden

of proof. clause, or’

formula for ascertaining the .“‘independence”’ ‘of the ;

evidence. ‘Immunity isa response to and a replace- * -

ment for a constitutional claim of privilege. When an

_ immunity statute takes the form of a full use immunity.

provision, the burden of proof of ‘‘independence”’ de-

OE Yl 2 eee ee ie:

“swe hold the. constitutional rule to be that:a |

"> eamnot be used in any manner by federal officials

| yin c connection with a criminal prosecution against

‘Once a defendarit demonstrates that he ha testi-

+ Slane mae tainted by establishing that it had an.

- Independent, legitimate source for the See evi-

_ dence.’’ (Emphasis added.). 378 U.8. at 79 and

And as Justice Brennan recently observed-in M ackey

v: United States, 91 S.Ct. 1160 (1971), had:the Court -

acceded to the government request and imposed use -

restriction in Marchetti v. United States, 390. US.

- 89 (1968), and Grosso jv. United States, 330 U.S.

— 62 (1968): (discussed supra), a@ burden of proof rule

would have arisen ‘which “would necessarily oblige

state prosecuting authorities to establish in each case

that’ their evidence was untainted. by any connection

‘

. “with information obtained as.a consequence of the wag-

ering taxes.’’ 91 S.Ct. at 1170, quoting from Marchetti, —

- 390 US. 39; at'59 (1968). The reason the Court felt

precluded from imposing use ‘restriction in Marchetti- —

Grosso. was that the statutory intent was an anti-use —

‘restriction device whereby federal registrants: ‘and tax-

‘ payers would be exposed to state criminal prosecution.

Justice Brennan also alluded in his Mackey opinion —

to the ‘‘required records’’ doctrine which operates in

the tax-regulator'y. fields and observed’ that; ‘‘the privi-

lege may not be claimed if the danger of in¢rimination .

lation of the taxing or regulatory Scheme.’ : Mackey, _

supra 91 8.Ct. at 1168. But what of collateral incrimi-

‘nation under some other law; should that defeat the :

required vecords Woctrine ? The’ answer should be no, |

; and the solution again should be use restriction.

. If, as Justice Brennan also said in M ackey, . he...

M archetti-Grosso decision ‘‘does not require that, once’ ~

Lg evidence has actually been compelled, we refuse.to pro-

that evidence any more than is required by the Fifth

Amendment,” 91'S.Ct. at 1170, then it‘is difficult to per-

'- eeive; contra his own conclusion, why an offer of use

. restriction should not be adequate to overcome a plea

of the privilege at the outset. There is: to be sure, as

_ Justice Brennan says, a distinction between a, plea ‘of

_ the ‘privilege which is allowed to prevent disclosure, .

_ and protecting a person after an involuntary disclosure.

\ But if full use restriction coupled with imposition of .

Be ‘burden of proof on the. government (which thus tips. ‘

\the balance against the government in doubtful cases) i en

adequate in the latter instance, why should it not be ;

~~ adequate to overcome a plea of the privilege and pro- i

vide i informtaion needed = we pups,

‘

To the datemngeiti of J ustice Goldberg for the. Court |

in Murphy, and Justice Brennan in Mackey, recog:

nizing the heavy burden of proof which use restriction ._

imposes on the government, may be added the coniments

of Justice Harlan in Califorma v. Byers, 91 S.Ct.

)- 1535, (97 1). Commenting on the California Supreme ¥

w Court ’s view that the common requirement that acci-

dent motorists stop and identify themselves could be —

_ juxtaposed with the Fifth Amendment by imposing a

“restriction on prosecutorial , use of the disclosed in- -

formation and its fruits,”’ he said’:

‘But that accommodation leaves the Government’ $

* eapacity to utilize self-rey porting schemes prac-

tically impaired by the necessary y presumption that

‘evidence used in a prosecution a

discloses his relationship to the regulated trans-.

action would not have. bans available if the oe

. ual had not-eomplied with the statute. . “%

“Even under a use restriction, then, the choice

open to the State is.to forego prosecution in at.

- least a large number of atcident cases involving .

, at B45. driving... .”’ Gp yetee). 91 8 Ct.

at 1 : :

In short, iti is Trenily established that the’ eirecaiil }

- bears a heavy burden of showing “independence” of its

evidence under a full use restriction rule. It is ‘also

quite logically assumed—in the absence of signifieant —

empirical, proof to the contrary—that full use -restric-

tion systems do in practiée “‘work,”’ t.e., they do protect

titutional non-self-incrimination interests and they

do hamper or’ bar prosecution. Indeed, it was the |

Court’s feeling, going beyond the intermediate question —

of burden of proof, that use restriction would com-

‘pletely hamstring, prosecution | which led the Court: not

ae 7 _ to — use restriction i in the M archelti-Grosso —

the individual. —

aa tion. “The ‘Court’ said that if use ‘Hestrietion: were im .

|’. posed the Fifth Amendment interest would be pro-

_ .-teeted, but “‘only at the cost jof hathpering, perhaps: .

|, Seriously, enforcement of: state prohibitions“ against’

a -gambling. af Marchetts v. United States, supra at 59. |. -

SN In the light of our. long | experience with exclusionary:

Paley and sole reliance on them as safeguards for con-: -

= stitutional interest in-thé fields of confessions and

. Search and seizure, it would be anomalous to maintain

_ that this. same device is insufficient to avert self-in-.

“¢rir iination when inélided i in an immunity statute. To .

As : (1966), ‘the rules devised in that case are likewise based

Ore presumption théo sory. Proof is difficult regarding — .°

~~ the: events taking place- in the precinct station, where

it may be the word of police vs. the word of the suspect.

- As has been’ said: of immunity situations; most of thé _

“evidence is “controlled by. the government. , The Coyrt

.. therefore.in Miranda ereated in effect a presumption |

of. police misconduct and of involuntariness of the sus-

"pect, unless certain warnings Were given. The aim is

“to avert. taki bovine uagel bet to exclude 50 confes-

sions,:

eee Similarly j in the immunity. Said aebich after all i is a.

ae _- very small] | appendage on ‘the criminal litigation tree by-.

_ » ;eomparison to the: vast confessions and search and

2. | seizure area-_a strong affirmative duty on the part of

-. the government, to show independence of the evidence

-would provide acing protection. Prudent govern- .

ments may also wish experiment with systems for .

Frewce their files; expanded use of affidavits regarding ~

- the manner and time of obtaining certain evidence, and__ *

- thedike.. Indeed, if deemed advisable after an accumu-’

lated. anes me. _ er could ‘be -

eo:

» judicially. imposed, as in Mibiadinss as part of thes con-

stitution-based presumption-butden of proof system.

‘Perhaps ‘the oldest example of a constitution-based, .

ug judicially imposed presumption system. is to be. found

in the racial jury exclusion eases. There the Court has

long protected a constitutional interest in. an area

difficult of proof by creating a presumption of racial _ -

discrimination if the percent of ority group on jury

panels over a period of years is far smaller than that

group ’s percent of the total area population. Norris ,

" y. Alabama, 294 U:S. 587 by cents Swain v. Alabame, ama,

~ 380 U. S. 202. ( 1965).

It shall also be noted that the shisition of proof of :

_ independent source” in the Fifth Amendment-im- .

~ munity statute situation may on constitutional grounds *.

be made more stringent than obtains in search and seiz-

“ure situations, in. order to _adequately protect Fifth «.

Amendment interests. The rationale \for the. exclu-

. sionary rule in the search and seizure eases has been ..

.. to discourage the police from violating \ the primary .

right against illegal search and seizure; it is remedial ..

- or derivative, rather thin basic. Mapp v. Ohio, 367. U.S.

643 (1961) ; Comment, “Scope of Taint under the Ex-—

-clusionary Rule of the Fifth Amendment. Privilege

Against. Self-Incrimination,”’ 114 U. Pa. L. Ret. 570.

(1966). By. contrast under the Fifth Amendment the -

. exclusionary principle is not just remedial or deterrent.

- It.is an integral part of the constitutional privilege it-

‘self,-giving it a primary constitutional basis, as Justice —

Black noted in Adams v. M aryland, 347 U.S. 179 at 181

(1954). Hence it is judicially controlled .as a primary *

safeguard inhering in the constitutional value, and can .

_ be as stringent as needed to safeguard that value. .The 3

Fifth Amendment (or: immunity statute) exclusionary

‘ ° 66

- rule therefore ii not. be limited _ Wong Sun v. .

-U nited States, 371 U.S. 471 ( 1963) or other cases which

_ have limited the “spread. of the taint’? in search and - .

" geizure situations by asking not whether the evidence

_ did have an independent source, but whether it.could or

= would have been discovered through independent legal

_-. means. Under the Fifth Amendment and a full use |

vestriction immunity principle, it would be appropriate

to require proof of actual independent source, not just

_ the possibility of evidence being gotten without the

ve compelled testimony. And of course the Court itself

~ in Murphy articulated an unqualified ‘independent 3

-» source’’ test for this Fifth Ameddment-imminity stat-

ute situation. ; , .

" *& Immunity in Intrajurisdictional Context

‘There remains to be disposed of the mutes that

even if full use restriction-be adequate in the context

of our: federal system when incrimination under the

_ laws of another. jurisdiction is at issue, it is not ade-

quate on an intra-jurisdiction basis when self-incrimi- .

‘nation is pleaded under the laws of {he interrogating

* jurisdiction itself. It seems-to be conceded by some of

¥ _ > the Justices. who oppose full use ‘restriction immunity.

. in the latter context, that it is appropriate in the

fornier context of inter-jurisdictional protection, and

that such a rule derived from Murphy v. Waterfron

Commission, supra, is now the law.. In Piccirillo v.

New York, 400 U.S. 548 at 567 (1971), Justice Bren-

nan, with J ustice Marshall concurring, did not reject.

all use immunity but said only that ‘‘ ‘use’ imfnunity is.

.... insufficient when the government involved isthe one

‘that has compelled the incriminating testimony.’ . And

~ .” in United States v.. Freed, 91 S.Ct. 1112 at 1119 (1971)

WJ ustice Brennan said: Hes — of transactional

‘

. - r

" $28 "3 * woe

Sellar Hain sitll cl og RMA LS

. : F

Py eee

‘immunity as raised here since. the case involves in- |

crimination under the laws of a jurisdiction different.

*from ‘the one compelling the incriminating Tnforma-

tion.”? :

But on what rational basis can such a distinction be

" supported t Our modern communication system, per--

sonal mobility, and the interjurisdictional web of or-

ganized crinie and all other types of conspiratorial’

crime, has given us an integrated national crime prob- .

lem calling for an integrated response with a premi-

um.on interjurisdictional cooperation. - In the confes-

-” gions and search and seizure fields we have no rule that

use restriction is adequate interjurisdictiondlly, but”

that a full pardon is mandated intraj urisdictionally.

N either the history nor the logic of the Fifth Amend-

ment, delineated above, mandates such a rule: It must

be remembered -that’ the constitutional principle does

not create a general right of nondisclosure, but a right .

against involuntary ‘self-incrimination. A plausible —

showing of possible incrimination must be made before

the privilege can be invoked, and the privilege ends -.

when incrimination is removed. The important coun- a

- tervailing principle often lost sight of, phrased long ~

ago in the formative years of the petviege:! is that ‘the

public has' a right to every man’s evidence.’”’* The

two principles create what has been called ‘‘the essen-

- tial tension that spring-from the ‘uncertain mandate”’

of the Fifth Amendment:: California v. Byers, 91 S.Ct.

1535, at 1549 (1971), J ustice racers eoneurring.

85 Words of Lord: Chancellor. Slant debets’ in -House of

\‘Lerds, 1742, on Bill for Indemnifying Evidence, 12 Cobbeit’s

Parliamentary History 675, 693; quoted in 8 be aura Evidence |

§ 2192, (ieNeughion rev. 61).

Pf . o

oe . et REO AMON AR, OP PSR OTS

‘ . - ns Mey AEE TENE LIED ON ELT NIE : TS ae ¥

penememeneneas <f. 2 GLOPTI ei «

Suiees: a ‘pale: confining. full use iauitiltinn: in- —

: munity statutes to interjurisdictional situations has not

_ been shown to be. supported by empirical evidence

| demonstrating that the practical difficulties of policing

use restriction in the immunity field are uniquely dif- -

- ferent from the difficulties of policing use restriction —

_ under other exchisionary rules, or that an absolute im-

- munity statuge is more easily policed than a'use restric-

ag atute, or that such difficulties as exist are greater

“nterjurisdictional situations ‘than in intrajurisdic-

: tional situations. Both Justice. White and Justice -

Brennan have hypothesized that the likelihood of ‘a

prosecution eventuating is greater. when only one gov- . :

ernment is involved. Murphy, supra, at.98; Piccirillo,.

_ supra, at 561. But such a hypothesis, even if true, does

_ not dictate the choice of one kind of immunity statute.

over another—a choice which must be made in the light

of the totality of constitutional and governmental con-

siderations bearing.on the present-day erent & sys-

tem as discussed. in this brief. ei

As Justice White has observed, ‘‘the scope of- im- -

munity conferred wholly: depends -on the testimony -

given,” which is true both of full use restriction stat-

utes and obsolute immunity statutes. Murphy, supra

at 99. And he went on to analyze the relative difficul-

ties of proof under the two kinds of immunity statutes,

speaking, at this point in general terms applicable —

“either tothe intrajurisdictional or interjurisdictional

situation. His view that absolute immunity statutes

. pose the greater difficulties of proof merits extensive . -

a quotation. The argument that only an absolute im-.

munity statute is constitutionally. adequate, he ob-

served, logically would void also all of our exclusionary . |

. rules concerhing an ‘‘illegal search and seizure, an il- .

« a e ‘ a> ‘ x %. Sere 69

wee wiretap, song detention, and coercion.” ‘He

then said: —_—- Hieice |

se Second,. there. are no. 5 el proof problems in ‘this ee

- [use restriction] situation. As in the analogous

‘search and seizure and wiretap cases, where the ~..

. burden of proof’ is on the Government once the -

- defendant establishes the unlawful search ‘or wire-

‘tap... once a defendant demonstrates that he has -

testified in a state proceeding in exchange forim-

munity to matters:related to the federal prosecu- -

- tion, tke Government can be put to show that its

evidence is not tainted by cakaitisitive that it had an -

independent, legitimate source for the disputed evi-

dence. Since the Government has the relevant in- —

_ formation within -its control, valid prosecutions -

need not’ be sacrificed and infringement on the

_ privilege through use of compelled testimony, ‘di-

rect or indirect, need not be tolerated. It is carry-

.. ing a’ premise of perjury and judicial incompetence | -

to excess to believe that this procedure : any

hazards to the rights of an accused. |

Third, greater requirements or difficulties of -

_ proof by a defendant inhere in the rule of absolute . .

_ Immunity. When a witness testifies under the aus-

pices of an-immunity act, the immunity he gets |

does not secure him from indictment or conviction.

. The witness must plead and prove, as an af-

firmative defense, that he has received immunity

_ and that the instant prosecution is on account of

' matter testified to in exchange for immunity .

which ‘may pose considerable difficulties where ‘the.

_ relationship between. the testimony and the prose-

_ eution is not obvious or where the immunity is ac-

quired as a result of testimony before a grand jury

or in an i. camera administrative p ‘ing.

. Murphy, supra, at 103-104.

To this line of argument, Justice Brennan i in Picci- 3

. rillo v. New York, supra, objects that ‘use. immunity

. literally misses half the point of the privilege, for it

‘permits the eompulsion without removing the crimi-. .

_ nality.”’ 400 U.S. at-567. But this statement miscon-

ives the privilege, unless it is now to be-rewrittensas

.a full pardon requirement. Full use immunity does —

_ remove the self-criminality, and that is all the Fifth -

er Amendment requires. .

J ustice Brennan, also. ‘hypathestuee various ; difficul- ‘

: Po es

- ties in single jurisdiction situations, where men “‘work- —

ing in the’ same office may exchange information —

7 without keeping adequate records, in ascertaining that

evidertce has an “independent source.’ Insofar as

"such a proof problem may exist, and may possibly. be

more aggravated in the single jurisdiction situation, it

. does not follow, as he suggests, that the solution can be-

found in requiring absolute (‘‘transactional’’) - im-

munity rather than full use restriction immunity, A -

_- better solution would be simply tp tighten up on the

adverse presumption against the government, as a con-

stitutional rule mameene to the M iranda warnings as

discussed above.

. Even if we were ‘willing to pay. the very high price

of absolute immunity and indulge in immunity. baths,

- absolute immunity. has its own serious proof problems

which’ negate its being a solution to the problem

hypothesized. For even under absolute immunity there -

is the difficult matter of proving ‘‘relatedness,” as.

‘already noted. Immunity flows only from the words -

- spoken and to avert a future prosecution-the person ‘

must show—with the burden on him rather than on

the government—not merely a relationship but a sub-..

stantial ai amen fi between his pe aii —

~~ York Cou

"+ and ‘the subsequent prosecution.” For ‘inability “to

carry this burden federal grand, jury witnesses have on _

oceasion failed: in their immunity plea in subsequent

federal prosecution. Heike v. United States, 227 U.S...

131 (1914) ; Himelfarb v. United States, 175 F’, 2d 924

(9th Cir. 1949), cert. den., 338 U.S. 860 (1949).

a difficulty with the “yelatedn ”” test under: an

absolute. immunity statute is: well - illustrated by —

a ioxoae New. York, supra, itself? There the New

of Appeals, ‘and the three members of this .

~ Court who addressed ‘the question, Justices Douglas,

. Brennan, and Marshall, différed on whether a substan-

tial relationship had been demonstrated. A person who- |

had been hired to assault a housing contractor. with

_ tire irons was caught by the police, and subsequently

tried unsuccessfully to bribe a policeman to dispose of

the irons. After pleading guilty and. being sentenced -

for the. assault, he: was brought before a grand jury

which was investigating possible organized.crime con:

spiracies in connection ‘with assault. Under’an assur-

ance of immunity he testified freely concerning the

- assault agreement and the use of tire irons, but the-

= bribery attempt was ‘not mentioned. Four days later

the policeman testified about the bribe attempt before - 2

the same grand jury, sews subsequently indicted the -

- assaulter, Piccirillo, and a eodefendant. for bribery:

- Piccirillo’s immunity plea:on the bribery charge was

denied by the New York Court of Appeals on. the |

ground that neither his testimony ior the fruits thereof —

were used in obtaining the bribery indictment, and that =: |

the New York immunity provision did not offer abso~.

_ 98 On the ‘‘exchange theory”? of immunity statutes of which the

_ “substantial relationship’’ test is one element, see ‘Dien, supra, —

22 Geo. Wash. L. Rev. at 479-80, 555 et shod ets

oth

lute immunity. People v. llo and Piccirillo, 24. .

N.Y. 2d 598 at 605, 301 N.Y.S. 544 at -550, 249 N.E. ~

2d 412 at 416. Subsequently in a different. case, the

. Court of Appeals reinterpreted the statute as offering |

_ absolute immunity, but said the conviction of Piccirillo

and his codefendant still" was correct*because they.

“gave no testimony which related or pertained to the

, offense for which they were prosecuted and of which

* they were convicted.” Gold v. Menna, 25 N.Y. 24475 —..

at 482 n. 1, 307 N.Y.S. 2d 39 at 38 n. 1, 2 255 N.E. —— oy

at 238 n. 1 (1969). a . O

The “relatedness” i issue in Piccirillo can. be argued.

two ways. Negatively, it can be argued that the witness -

did not touch on the bribery in his testimony, and that

_even. his mention of the tire irons did not.create a sub-

~~ stantial relationship because the state already had ‘its.

bribery case-made out and undoubtedly could-have ob-

tained the-same indictment from a-different grand j jury.

the “exchange theory” .of immunity statutes which |

. underlies Shapiro v. United States, 335 U.S. 1 (1948),

and also by the.“‘harmiless error’’ principle. Affirma- —

tively, and probably more persuasively, it could. be

argued that there is a substantial relationship because.

_ the tire irons were common to the assault and to the

_bribery attempt, and thus the witness’ assault testimony

furnished some corroboration for the policeman’s’

bribery testimony. This was the view of Justices -

Douglas and Brennan in their: separate comments in |

Piccirillo, and it is supported by , the yeas: of :

absolute immunity statutes. :

: ‘However, do not the very facts of Piccirillo argue

~ against absolute immunity statutes with their possible

—s to crime, 4: and for full use ieemanity statutes

aaa

| as sich the appropriate way to pfepiiands interests in.

. both the intrajurisdiction. and. interjurisdiction situa-

_ tions?’ Even under a full use immunity statute it can

be argued that the case was wrongly decided and

' immunity. should ‘have been conferred because ‘6f the

corroboration element,.which: is a/species of “fruit”

derived from the witness’ testimony. (The tire irons

alone should not be enough to create immunity under

a. use statute because the police had independent knowl-

“edge of them, having caught the defendants inthe act =-§

of assault.) Ifthe state had used separate grand juries .. /

. the corroboration element: “would drop out. Under a

full use -immunity statute conviction would ‘then be

possible, and properly so, on an independent evidence cae

_ theory. Under an absolute immunity statute, however,

the government’s case would still be forfeited because

- of thé common element of the tire irons, : Thus. the

ee investigation of a possible organized crime conspiracy,

which, was why. the convicted a8saulter was brought. —.

before the grand jury, would cause a gratuitous for:

feiture of the concurrent bribery offense for which the

a government had eyewitness testimony.

In summary, the position. that full use eebeiabion :

immunity is all right in some situations arising under

the Fifth Amendment, and not in others, gg difficult to

_ sustain either in terms of logic, need, or gracticalities

‘of enforcement.| The position rests on a questionable; -.

“‘two-level’” perception of the Fifth Amendment, as —

_ follows: . (1) use restriction in the form of.a —

" judicially imposed exclusionary rule is always adequate

to remove criminality after a disclosure compelled in _

~ yiolation of the Fifth Amendment, whether the context... -

is intrajurisdictional or interjurisdictional ; (2) a full- 7

- use. restriction immunity statute ink is adequate :

-. os

before. disclosure, as a way of removing criminality,and

opening the way to disclosure, where one jurisdiction —

seeks the testimony and the feared criminality is under

the law of another jurisdiction; (3) but a full’ use re- .

, striction immunity provision is inadequaté-as a way of

_-gompelling disclosure where the jurisdiction which .

eeks the information igGhe one which might prosecute.

fe ‘The first point is supported by Umited. States v. Blue, oe

384 U.S. 251 (1966), discussed supra, and all of ‘the

~ exclusionary rule cases. See also Part III of Justice

_ Brennan’s..concurring opinion in Mackey v. United |

_ States, supra." The second point flows from M urphy

a Waterfront. Commission, supra. The third point is

- the issue posed by Justice Brennan in. Piccirillo, and

_by the instant appeal, and the Supreme Court has never

had, occasion squarely to rule on the question. We

submit, howeyer, that the contention that there should

‘be .a more stringent rule in the third situation is not.

supportable, It is not supported by history which indi-. -

cates that beginning with Lilburne the. continual de-—

mand of proponents of thie privilege has been for a full

-use restriction rule—not a blanket pardon extending

even beyond the offense under investigation. Nor is it

‘supported by demonstrable difficulties in implementing

. the conventional exelusignary 1 rule. As already noted, --

the burden of proof under @ use restriction rule rests

i In the same opinion after dinioatita Marchetti-Grosso Justice

Brennan also noted that “if the information has been compelled

over'a elaim of privilege . . the individual [is to be] protected

against the use of that information i in state prosecutions under the .

statutes making criminal ‘the taxed activity, and to complete ” ms

munity from prosecution under Federal statutes of like kind.”?. .

_ Mackey, 91 8S. Ct. at 1169. The’ last three words, to which em-—

phasigghas\been added,,fall short of extending absolute cinema

Es Se a en ee:

~ . MeNaughton, Wigmore, an

‘ also be noted that the ne

on 1 thé ‘government, not on the-defendant, as cele

absolute immunity. And as also exp ied above, the »

burden of proof in the Fifth Amendment¥ituation may

on constitutional grounds be made mere strbggeént than —

We rite that the ‘Court of ispla for the Ninth” .

= - Circuit, in a case arising under ‘the federal witness

immunity act of 1970, 18 U.S.C. Sees. 6001-6005, agrees.

-with the foregoing analysis and conclusion that full use

restriction immunity is constitutional in intrajurisdic- :

tional context as well as in interjurisdictional” context.

Stewart v. U nited. States, Kastigar v. United States, -

(440 F.2d. 954 (9th Cir. 1971), cert: granted, 39

US.L.W. 3505 (May 17,1971). This ruling has been

followed by another panel in the same-Circuit, Charles- - :

“ton v. United States, No. 71-1787 ,and Herlicy v. United

_ States, No. 71-1788, June 16, ‘1971. ‘Two opposing —

opinions rest on the now traditional misconception of

' the facts actually at issue in Co rselman, and hence a

- misconception of thé breadth of ' e Counsélman hold-

ing. In the Matter of Korman qgd Likas, (No. 71-1328)

(7th Cir. May 20, 1971) ; Int atter of Kinoy, (No.

-M-11-188) (S.D.N.Y. Jan. 29, ,/i971). =

Full use ‘restriction immunity, without venervation

regarding the intrajurisdictional context, is ‘also:

supported by ‘other authogities, e. 9. * “MeCormick,

Mayers.” And it may -

eneral federal» witness :

3U 8 &. Sees. ee

nena! act passed i in 1 1900,

se MoCormick. Handbook wo the Law of Evidence, 285-86 i 1952) ;

§ Wigmore, Evidence § 2251 n.1, 2284 (McNanghton Trev. gel

— at 76, 126, 230.

* s c “ . “4

® i 2 . i.

eS eer, |

_was recommended amanimously by. the National ‘Com-

sion. on Reform of the Federal Crimi 1 Laws." .

FORMULA, COULD OPEN THE

WAY TO EXTENDING. ‘TECHNIQUE TO RE-

LUCTANT SSES 2ED UNDER , DEFENDANTS’

IXTH MENT } COMPULSORY

aoe . PROCESS, : foo Saas )

se Looking to the ‘future, it msi be poahind That.

use immunity. to: overcome a plea of the Fifth Aniend-

+ ment, which we feel has been constitutionalized already @>

_.. for the government in such cases as M urphy and Freed,

supra, could alsqxwork ‘to aid criminal defgudants re- -

ed garding their own recalcitrant defense witnesses. In

«. present operation, immunity | is limited. to avitnesses .

called by the government, United States v. Standard .

- Sanitary Manufacturing Company, 187 F. 232

-.** - (0.0.E.D. Pa. 1911),.and yet there may be-a similar

need regarding witnesses called ‘by’the defense. It’

would be unthinkable to empower defense counsel to.

‘confer absolute immunity if such situations. It may

- be. suggested, however, that a full use restriction’ — -

EES a ‘A cece. ° |

NI@y N

tions of fairness to the défendant and avoidance of —

large-scale defendant-controlled immunity baths. ° In-

» deed, making good on defendant’s» Sixth Amendment

| “right. of mene stasis for — a s

89 See Cotmmission’ s Final emer xi “97 1) (Hamand G. Sensnll nf

Chairman) ; see also: Commission’s Secorid Interim Report in Hear-

ings ‘on Measures Relating to Organized Crime,. Senate Subcom: »

mittee on Criminal Laws and Procedures, 91st Cong., 1st Sess. 287

(1969). The measure was approved by the Senate Judiciary

_ Committee without dissent (Report on Organized Crime Contrdl “4

- ” Act of 1969) and by the House Judiciary Committee, with only

one dissent (Report on Federal Immunity of Witnésses RO.

‘ . . . a

: . bie . . a reg :

* : Fy

mee pect oe ~— ' ’ ; : . &

- ne ant SER Ree MIO EEO BRIER LOM ARTIS RERUM Be tip MSS TAT coe PELE aE SEL, ee tS LRT MTS I

= a . BN v x ——t ' . . 5 t

: -e ‘ . oe : ae -

E “ ‘ ‘4

‘ . e

wea

- \4e

ae =

in his favor,” Woskiagioes y, Texas, saaU. S. fa, 3,

—\(1967), maybe deemed, to require a correlative use

2 immunity, provision so that a plea.of the Fifth will not.

--¥itiate defendant’s basic right to have witnesses.. In ~

__ Earl v. United States, 361° F. 2d 531-(D.C* Cir. 1966),

pet. for rhg. en baric, 364 F. 2d 666 (1966), cert. den.

LA -*

-388 U.S. 921 (1967), this immunity: “issue was raised’ 7

but -rejected, the Court saying that ‘‘the judicial crea- .

tion of a procedure comparable to that enacted ‘by .

We might have quite different, dna: more diffeult,

.. problems had the Government in this case secured

testimony from one eyewitness by granting him

immunity. while declining to seek an ‘immunity

grant for Scott to free him from possible i incrimi-

nation to-testify for Earl. Ghat situation would

~~ Congress forthe benefit of the Government is b

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.