# Amicus Curiae Brief — Zicarelli v. New Jersey Comm'n of Investigation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0016%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 406 U.S. 472 ## 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 f \ "" ‘Rosgrt G. Dixon, Jn © |). 720 20th Street, N. W. 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&. ~.* | 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 : . . -* @ . s | 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. ; ? ‘ A) - 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. i “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 : a- 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 ] go 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) 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 we 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. | 13 -* ‘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. . . ye a ee SE aD hae » “ . a 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 ee . ; L “ ‘ . . 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 « 4 + which focussed only on ee 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 E> sFgye? $ : r bs a + id - 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 ¥ - ‘ t* | 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 4 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 pw ‘ 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); iv | 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 © - A CLAIM OF THE FIFTH AMENDMENT PRIVILEG "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 a : -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 . ; .*° 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. ° > 0: ~~ s 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 36 . ‘- : 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 - 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 47 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- 48 ~ 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. 9 . 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 49 \ =. 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 = > e a e . . ~ . - e ad 2 : : - rie e : j b _— : — a c ET ee Ro cued Doadadiasdeista seme eal ; amen , . a . 2 a 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 _ resting on a. web of interlocking agreements, that the © — technique f is — And gs are the very. - 52 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- nation slowly developed to a rélatively -high level. of © > 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 ae = 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 - w, 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 - a 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 59 f 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: 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 ‘ 62 . “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 . is only that the gnformation required may show a Vio- © 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- '. teet'a valid governmental interest by restricting use of © 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, ‘ a) 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 a 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 . pos advert again to- Miranda v. Arizona, 384 U.S. 436 © 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 ‘ a £ : . - r " $28 "3 * woe Sellar Hain sitll cl og RMA LS . : F Py eee Aa ‘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. - i 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 ‘ 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 71 "+ 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 ee 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. ._ Such a narrow interpretation would be supported by © 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 ae 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: oe - obtains in Fouyth Amandine situations, ©“... ~ . MeNaughton, Wigmore, an ‘ also be noted that the ne 5 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’ — - ®* - formula could accommiodaté tthe ® eompeting: ‘econsidera- © EES a ‘A cece. ° | NI@y N oo c 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 rd be 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 ey - \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 beyond — our power.’® 361 F. 2d at 534}.accord, Morrison-v.. ° _ United States, 365 F.-2d 52) (D.€. Cir. 1966). How- _ ever, ina cautionary footnote the Boures in. pane: Earl case - _ also said: : vividly: dramatize an argumerm on behalf of Earl te the statute as applied denied him due process. rguments could be advanced that in fhe particu- + -' - lar case the Government could not.use-the immu- _ nity statute for its advantage unless Congress made - the same mechanism available to the accused. Here we.are asked in effect to rewrite a statute so as to ~~ make-available to the accused a procedure which Congress granted only to the Government. (Em- a . 2 phasis in original. ) 361 FP. 2d at 534 n- 1. And commenting on the denial of Avena en bané in _ Earl four. judges termed the issue ‘‘novel.and trouble- z some,’’ and “likely to recur. ” 364 F. 2d at 667. : . oR ROPE ENE ONT AY CLINTON I Ne - CO! SION, CLUSION age For the foregoihy- reasons, New. Jersey’s full use restriction immunity law is constitutional under‘ ‘the. _ Fifth and Fourteenth ae ‘and: the et S below should be ame, es ” _ eget submitted, = | ~ Roper G. Drxon, JR. ec 3 720 20th Street, N. W. — : | Washington, D. C. 20006". ee ees Ps “Attorney for Aimici Curiae . . - e ES) ww ‘ e 2 e: : ; se SS - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0016%3A7. Public record. Not legal advice.