Kastigar v. United States

PETITIONER:Kastigar
RESPONDENT:United States
LOCATION:Illinois State Penitentiary at Menard, Illinois

DOCKET NO.: 70-117
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 406 US 441 (1972)
ARGUED: Jan 11, 1972
DECIDED: May 22, 1972

ADVOCATES:
Erwin N. Griswold – Argued the cause for the United States
Hugh R. Manes – Argued the cause for the petitioners

Facts of the case

Kastigar cited his Fifth Amendment protection against self-incrimination in refusing to testify before a grand jury, even though prosecutors had granted him immunity from the use of his testimony in subsequent criminal proceedings. He was found in contempt of court for failing to testify.

Question

Can the government, by granting immunity from the use of compelled testimony in future prosecutions, force a witness who invokes the Fifth Amendment to testify?

Warren E. Burger:

We will hear argument next in Number 70-117, Kastigar against the United States.

Mr. Manes you may proceed whenever you are ready.

Hugh R. Manes:

Mr. Chief Justice and may it please the Court.

This case involves the constitutionality of the federal use immunity statute Title 18 Sections 6002 and 6003.

The question presented in this case, whether federal use immunity as conferred by Section 6002 is coextensive with the Fifth Amendment privilege against self-incrimination.

This case arises from the imprisonment for civil contempt of the petitioners, both of them, by the federal district Court or the central district of California for refusing to answer questions put to them by the — before the grand jury for violations or alleged violations of the selective service law.

The petitioners were accorded use immunity by the United States Attorney and ordered to answer by the United States District Court pursuant to that immunity which was conferred under Section 6002 and they declined to answer the questions in any event invoking their privilege on their theory that the immunity offered by 6002 was incomplete.

Petitioners contend here that only transactional immunity will satisfy the Fifth Amendment privilege.

We take that position for several reasons.

First, the history and development of the privilege and the logic compel absolute immunity be granted and nothing less.

Secondly, we argue that so called tainted evidence, rules required for the administration and control and supervision of the use in these statute are inadequate.

They cannot guarantee the absolute immunity which the Fifth Amendment demand requires.

Thirdly, we take the position that the statutorial language of 6003 so limits the Court power as to prevent a fair and reasonable application of use immunity and in particularly prevent adequate Court supervision of the use of that particular immunity.

Finally we argue that use immunity conferred by 6002 coupled with existing statute for example the Jenks Act rule 16 and other provisions.

As such has to deprive the witness of due process and abridge his right guarantee him by the Fourth and Fifth Amendments and particularly to render these immunity statutes at bar unfair as against the subject witness who may become an accused person.

Before I proceed with that argument, I would like to point out something about this particular statute that we are dealing with which is in response to questions put to prior counsel.

This I would respectfully submit, is use immunity statute that has no limitations indeed it is called a general immunity law.

It is not limited in its application to simply multi-defendant cases nor is it limited in any way to any particular kind of offense.

It permits immunity to be granted and the witness to be compelled to answer and virtually, most if not all offenses.

And certainly as again, whether the person is an individual and charged or suspected of only an individual crime as well as of course, the multiple defendant offense in this kind of situation.

And we submit that where you have a statute that is as broad as the statute at bar from a prosecution point of view if it is there, it is going to be used.

And it is limited in its use.

It has to be approved by somebody in Washington at least besides the assistant attorney general level or it has to be ascertained.

It has to be the authority for giving, immunity must be approved by the attorney general or its authorized representative, but I would submit Your Honor that under Section 6002 has to be as –

The attorney general, the deputy or one of the assistants here in Washington, do I read the statute correctly?

Hugh R. Manes:

Yes sir.

And is that true also with respect to subsection 3 of 6002 when it involves questions before a committee of all the houses of congress.

Hugh R. Manes:

Well, Your Honor I would assume so but I am not addressing myself to the question of scope as–

Well, I am just inquiring as to the scope of –-

Hugh R. Manes:

I would assume Your Honor that that would be true in both cases but I could not represent as to its effect with regard to the house or congress might certainly confirm that that would be true as regards immunity for a grand jury.

Hugh R. Manes:

And I would add to that if the Court please, that the representations maybe made through the Court as mere conclusions as they were below with regard not only to the authority.

And I would further point out that all that the United States Attorney may show is a conclusionary statement that it is in the public interest for the government to grant immunity and to inquire also really of the witness.

He may not — he is not required to show in the Court cannot demand that he show reasonable cause for intruding on the privacy, I think this is a very important thing that we are talking about a secret proceedings such as the grand jury as in this case.

In any event, what I wanted to —

Potter Stewart:

What does the record in this case show if anything as to the authority under — as to who did authorize this and why?

Hugh R. Manes:

All the records shows Your Honor and that will appear in the appendix at pages 54 and 60 of the appendix, actually 54 through 60.

Potter Stewart:

Right.

Hugh R. Manes:

It simply shows that the United States Attorney represented, that there was a public interest in having the petitioners appear before the grand jury with use of immunity.

That they would invoke the Fifth or indeed had done so in the case of Kastigar and that the privilege was made with good faith with the approval of the Attorney General of the United States.

That is all the showing that was required and I want to reiterate that the showing that is made there is without any detail as to in what respect there is a reasonable cause, it is just a conclusionary statement.

Now, I wanted to urge upon this Court why we take, why it is important to us at least that transaction immunity be regard as the very limit for the Fifth Amendment for the grant of any kind of immunity and I would urge upon this Court that it is the government that wants immunity.

When we talk you know, of giving immunity back, I would urge this Court to consider that it is the government that is seeking to force a person to testify against himself.

And they are seeking that immunity, they are seeking that testimony to compel him to testify against himself because they want some information and he is not convenient for doing that.

Warren E. Burger:

We will suspend for an hour.

Hugh R. Manes:

Mr. Chief Justice, state counsel, may it please the Court.

It has been said and argued that—

Warren E. Burger:

Do you want, I gather you want us first to overrule the Ullmann case.

Hugh R. Manes:

The which case please?

Ullmann.

Hugh R. Manes:

Ullmann?

Well I would—

Ullman case.

Hugh R. Manes:

I would like that but I try to be realistic Your Honor and assume that is —

First part of your brief deals with that problem.

Hugh R. Manes:

It does and because we believe that the Court has never answered the question as to whether the Fifth Amendment and its history does not enjoin compulsion and on that pieces your honor.

Well, I address myself to the dissenting opinion as you may remember.

Hugh R. Manes:

Yes Your Honor, I do.

But nobody except for Justice Blackmun agreed with it.

Hugh R. Manes:

I know that Your Honor and so I am taking it from there.

But if the Court please, I — there is an argument that is being made that the Fifth Amendment protects only use of compelled testimony, and I want to address myself to that just for a moment and point out that the Fifth Amendment has been held by this Court in Ullmann not to be interpreted in a hostile or negative spirit, and that it is to be construed liberally to effectuate its intent and purposes and that was the holding of course in Spivak versus Kline (ph) as well as many other cases.

Hugh R. Manes:

And so I would note that there is not just one purpose as this Court observed in Murphy at page 55 and as observed as long ago as Boyd versus United States, the Fifth Amendment has many purposes that had to be considered when you are evaluating the question of whether use immunity is efficient.

For one thing, the Fifth Amendment was designed and came in to our constitution to prevent disclosures by torture and well, I submit that maybe some may feel that that is kind of remote now, we are in a modern age.

I would remind this Court that it was only 30 years ago when this Court was forced to deal with the problems of third degree in Brown versus Mississippi, Chambers versus Florida and a whole series of cases and only a few years ago when this Court had a hold Miranda that it was necessary for an accused to be given a warning about the effect of this testimony.

So we are concerned with the scope of that protection as applied to coercion.

But in addition to that, the Court please I would submit that the Fifth Amendment also has policy consideration which is long been the concern of this Court, that is the distrust that we have of coerced testimony, the distrust we have of it.

I would submit that in Brown versus United States which was decided only a year after Walker versus Brown, this Court made a very important observation.

It recognized at page 547 168 U.S., the human mind under the pressure of calamity is easily seduced and is liable and the alarm of danger to acknowledge indiscriminately, a falsehood or a truth as different agitations may prevail.

And why I think that particular quotation is apt here is because the petitioners here are put in the position of avoiding jail not simply because they have been granted immunity or be held in contempt, but that they are compelled to avoid jail by giving information which they think the government may want to hear and ought to avoid prosecution.

Now, that is a tendency, I would respectfully submit, that is inherent in any use immunity statute and certainly in the one involved.

But there is another policy consideration here too and the Court please, and that is that it is to avoid not simply a trilemma but a quatrolemma if the Court please of self accusation, perjury and contempt and the possibility of prosecution.

I would submit that Brown versus Walker deals with that dilemma or that quatrolemma as I prefer to call it.

Very succinctly and poignantly and remember this is in 1896 when the Court there is talking about the policies which gave rise to the Fifth Amendment and it observed that if an accused person be asked to explain his apparent connection with the crime under investigation, the ease with which the question has put to him may assume an inquisitorial character, the temptation to press the witness unduly to (Inaudible) him, if he be timid or reluctant, to push him into a corner and to entrap him.

To entrap him into fatal contradictions which is so painfully evident in many of the early state trials made the systems so audios as to give rise to a demand for its total abolition.

In the context of this case, I would respectfully submit in response to a question that was posed to counsel this morning.

That the accused here does not hold exclusively the keys to his jail door.

On the contrary, it is like anyone who has money and has a safety deposit box, he shares that with the bank and so here, the accused shares the keys with the government.

For well it is true that he can talk and thus open the door of contempt that has confined him in contempt.

The government holds the key as to whether his talking may lead to a desire to prosecute him and therefore I submit that when we are talking about quatrolemmal, we are not talking about the policy and the privilege, we have to consider this possibility as well.

We have to consider what was said by this Court in another cases.

The choice here that the accused has between the rock and whirlpool multiplied.

And there is another consideration to Court please and that is the basic respect which this society has for the inviolability of the person and his privacy as the Court noted.

In Mallory versus Hogan as it noted.

In Miranda versus Arizona and it is certainly noted long ago in the Boyd case when it observed that any compulsory discovery by extorting the parties oath or compelling the production of his private books and papers to convict him of a crime or deport that his poverty certainly is a principle that merges into the Fourth and the Fifth Amendment.

And another point, we have here in our society a preference for the prosecutorial system, for the accusatorial system, which places the burden entirely on the government, and not for the inquisitorial process, which I would respectfully submit certainly in the context of this case.

It takes place in the grand jury room where the accused is without a lawyer.

Where he has no protection whatsoever but where he is faced with a lawyer.

And I would respectfully submit that given the secrecy which attends all grand jury proceedings and the secrecy which prevails thereafter as the decisions of this Court have made quite apparent in many cases, that it will be extremely, the accused will be extremely hard put not to feel a sense of entrapment by the circumstances which attempt the use immunity situation.

But there is one additional consideration which I think underscores the Fifth Amendment as I read the cases of this Court and that is the notion of a sense of fair play which requires the government to let the individual alone unless it has reasonable cause to justify intruding upon him.

Now, as I pointed out earlier in my comments, This statute gives the accused no opportunity whatsoever nor indeed the Court to inquire whether there was reasonable cause to peruse his privacy or indeed his defenses and allows the government to ransack his defenses as the accused is not permitted to do with respect to government files.

Now, I would respectfully submit that there is other considerations.

Hugh R. Manes:

That for example the protection of the innocent even though some guilty may benefit incidentally, that is a choice.

That is a choice which government makes in the context list of this kind of statute and it is a choice which is made upon the circumstance that if the accused has something that it wants to have badly, then the government should be put to the choice as it was put to the choice in Rosairo, as it was put to the choice in Andolshek and Coplin and a number of other cases, it has got to choose.

If it wants to have information, then it will have the information that avoid prosecution.

But if it wants to prosecute, then prosecute and let the privilege remain the sanctuary of the individual who is presumed to be innocent.

Warren E. Burger:

And then you think there is, is there any empirical data had been assembled by anyone, any significant way to show how many persons who have been granted immunity in exchange of a testimony had there after been prosecuted and have these problems that you are discussing?

Hugh R. Manes:

No sir, I mean, I am not aware of any empirical data and as a matter of fact I suspect one reason maybe because use immunity is still somewhat new, this statute was only passed last Fall.

Warren E. Burger:

And I was thinking of immunity generally.

Hugh R. Manes:

I am not aware of any Mr. Chief Justice but I would say that there are some cases which show the difficulties that Courts have had even with transactional immunity although the difficulties are not going to compound with use immunity but I do not hold any empirical data in the Court.

Finally, I want to submit one other additional consideration to this Court for policy consideration, and that is the respect for law and the orderly process of administration that comes with the idea that a man cannot be compelled to accuse himself and which will be undermined when there is even the suspicion that an accused has been given, that there maybe some evidence that is being used to taint his trial that has come from his own mouth.

I remember reading somewhere, I think it was in Moore versus Dempsey where Mr. Justice Holmes once said that it is not only important to give justice or to do justice but to give the appearance of justice and I think that this is an important consideration.

Now, I am not going to here debate, the question whether Counselman ought to is dicta it is not — I take the position it is not dicta but obviously this Court is concerned to reevaluate the problem that the Counselman addressed itself too.

And I would however point out to this Court that there have been a — the Ninth Circuit affirmed of the use immunity statute here, that has not been true in a Seventh Circuit, that has not been true in the Third Circuit, citation to the Satina case, Satina versus Elias being in the 449 F 2, page 40 and more recently just recently, the Eighth Circuit also took the view that the Ninth Circuit was an error and viewed, viewed the underlying policy considerations of Counselmen as prevailing and I refer here to United States versus McDaniel 449 f 2 832 at page 838.

That case incidentally is kind of interesting because it addresses itself to one of the questions that was put to counsel early this morning.

When counsel was asked about weather he was overzealous, whether a prosecutor was going to be overzealous.

In that particular case, I would point out that counsel there was the federal prosecutor who because he was informed by his administrative agencies that there was a suspicion that a bank president was defalcating and embezzling monies.

Turn the matter over to a State to the state of North or South Dakota and the State then held an immunity grand jury proceeding, on the ground of immunity and then at the request of the United States Attorney, turned that transcript over to the United States Attorney for prosecution and indictment followed.

I would say that the Court there held, that that was prime facie evidence of the use of fruits but I would also point out that it demonstrates as does of course, the Berger in 295 U.S. and number of other cases demonstrates that prosecutors can be at times overzealous and particularly when conferred with such extensive power as appears to be the case here.

But when I first spoke, I suggested that there were other compelling reasons why I believe use immunity should not prevail and one of the most important of those reasons of course is that it is inadequate, that the rules that are designed to enforce and administer the use immunity concept are just simply unable to effectively displace the Fifth Amendment.

In short, what I content, what we contented in our briefs is that that the rules that are designed to protect the Fourth and Fifth Amendment in search and seizure cases and in the forced confession case are simply not adequate to protect or to at least define the limits of the Fifth Amendment.

In short, what is happening here, what is being argued for here is the use of essentially procedural rules to define the substantive rights of a witness and I submit that that cannot be done without creating some terrible problems for an accused who is questioning whether the evidence used against him in a subsequent prosecution had this tainted.

Let me suggest some concrete examples of what I am referring to in this concept.

First of all, California, the California Supreme Court decided in People versus Dickson 57 Cal 2 at page 415, that was a forced confession case and it held there that the fruits of a forced confession were not admissible but it went on to hold that the fruits of a forced confession may not be admissible but that if the evidence was discoverable, was discoverable by law enforcement that therefore that under those circumstances there was an attenuation and that evidence would be admissible.

And that same theory that was used in the Dickson case and in subsequent California Supreme Court cases, and the case of like nature has also been applied by the District of Columbia Court of Appeals in Wayne versus United States 318 federal second and it was applied most recently by the Ninth Circuit in a case, United States versus Jackson 448 federal second at page 970 where the Court and I am quoting said “it would be speculative to conclude that but for such information, the police would not have identified defendants or learned their place of residence.”

I would like to reserve some time for reply, thank you.

Warren E. Burger:

Very well, Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice and may it please the Court.

The facts of this case are simple and not in dispute.

The respondent here was ordered to testify under pursuant to Section 6002 of Title XVIII of the United States code, he refused to do so.

The question is whether his sentence were contempt for failing to comply with that order can be sustained consistently with the Fifth Amendment.

Of course, the language of the Fifth Amendment is familiar to all of us.

Erwin N. Griswold:

It is one of the shortest and the simplest clauses in the constitution but I think it is worthwhile to get back to the language.

I do not suggest for a moment that it should be construed literally.

On the other hand I do not think that it should be regarded as a take off point for a vast expansion which has sometimes occurred.

But the language is that no person shall be compelled in any criminal case to be a witness against himself.

And the language of Section 6002 which is Section 201 A of the organized crime control act of 1970 is that though the witness is required to testify under that statute, no testimony or other information compelled under the order or any information directly or indirectly derived from such testimony or other information maybe used against the witness in any criminal case.

The problem arises because of the language in Counselman against Hitchcock, 80 years ago.

The case it seems to me is a sort of jurisprudential case and example of the process by which the law grows and develops In this case, after rather extended delay.

We now know that there are at least three measures or varieties of immunity, not two as we long assumed in support.

The use immunity, which was involved in Counselman and Hitchcock and was held to be inadequate and invalid.

There is extended use immunity.

Immunity not only to the use of the testimony but to its fruits which is what is involved here.

And finally there is transactional immunity giving amnesty or pardon with respect to any offense covered by the testimony and that was held to be sufficient in Brown and Walker.

There is complete agreement as to the invalidity of use immunity alone and as to the validity of transactional immunity.

The problem arises and is presented here with respect to the validity under the Fifth Amendment of full extended use immunity applicable not only to the evidence given but also to the fruits of such evidence.

The situation that seems to me comes within the examples of which the common law is filled which are dealt with in by Dean Pound in his work on jurisprudence, volume three page 564 where he says we must distinguish subsequent judicial rejection of the reasoning by which the result was reached in a prior case and substitution of different reasoning leading to the same result from a changed course of decision and he concludes it cannot be insisted upon too often that the common law technique does not make the language authoritative, much less a binding authority.

It is the result which passes into law.

No one saw the distinction between use immunity and what I will call extended or complete use immunity.

For almost 75 years after Counselman against Hitchcock was decided.

I thought a lot about the privilege against self-incrimination, some 17 years ago.

But I did not see the distinction.

Mr. Mayer’s in his thought provoking book called ‘Should the Fifth Amendment be amended’, published in 1959 did not see it.

Judge Friendly in his lectures on reconsideration of the Fifth Amendment published several years ago did not refer to it.

Now the distinction to which you are now referring is the distinction between what use and (Inaudible)

Erwin N. Griswold:

Use immunity alone such as was held invalid in Counselman versus Hitchcock.

Right.

Erwin N. Griswold:

And in immunity against the use of the evidence and all of its fruits construed as broadly as the Court feels it should be construed.

The fact was that for ordinary purposes, the question was concealed because immediately after Counselman and Hitchcock was decided, Congress picked up the sweeping the language which Mr. Justice Buchwald has used in a part of his opinion there.

The statute which Congress enacted was introduced in the Congress 12 days after Counselman against Hitchcock was decided.

And Congress provided full transactional immunity in nearly every case where it required the testimony be given in one case where it gave only the narrow use immunity, the Court did held that that was invalid.

Congress did this because it thought it had to do so.

Erwin N. Griswold:

It was only many years later, when this Court found for the first time that the Fifth Amendment applied in terms of the States.

In 1964 seven and a half years ago, the question rose to the surface.

It came in through the side door so to speak because Congress by its statutory language had left no room for it to come before the Court directly in a federal criminal case.

Now the case to which I refer is of course Murphy against the Waterfront commission where the immunity was granted by a Bi-state Organization.

It was held that the state had no power to grant immunity, transactional immunity against a federal prosecution but the Court sustained the statute by holding that under its supervisory power or in some other way it did not wholly clear the testimony obtained in the Bi-state Proceeding could not be used nor could its fruits be used in a federal prosecution and that that complied with the Fifth Amendment.

The issue was implicit and Mr. Justice Goldberg’s opinion for the Court in that case for example, 378 U.S. at page 78 and 79, Justice Goldberg’s statement of Counselman against Hitchcock refers several times and only to use and its fruits.

It was explicit in Mr. Justice White’s concurring opinion and in the Courts opinion, the opinion of Justice Goldberg.

The conclusion was, that the testimony could not be compelled unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against it and then he repeated the conclusion that the federal authorities would not be allowed to use the evidence or its fruits and said this exclusionary rule of permitting the States to secure information necessary for effective law enforcement leaves the witness and the federal government in substantially the same position as if the witness had claimed his privilege in the absence of the state grant of immunity.

And the distinction was explicit and the opinion of Mr. Justice White concurring on that case and if it was that opinion I think which brought it well out into the open and got a lot of people to thinking and resulted in the work by professor Dickson of George Washington University incidentally he has filed a brief in the Zicarelli case on behalf of the National District Attorneys Association which seems to me as an excellent brief and which I hope will be considered in connection with this case.

Since then, the Court has several times given intimations that extended use immunity is sufficient in Gardner against Broderick for example in 392 U.S., the Court said answers maybe compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony for its fruits in connection with the criminal prosecution against the person testifying and more recently last term in United States against Freed, the Court upheld the latest version of the firearm statute under situation which I think analysis will show can be supported only if extended use immunity is adequate.

What about Spivak Mr. Solicitor General?

Erwin N. Griswold:

Spivak was the case of a lawyer, how far that is affected by Gardner and Broderick, I am not sure.

Gardner and Broderick says that—

Well, Spivak has never been really overruled has it?

Erwin N. Griswold:

Spivak?

Has not —

Erwin N. Griswold:

Has what?

Not been overruled.

Erwin N. Griswold:

I do not believe it has been overruled except that Mr. Justice Harlan who dissented in Spivak against Kline (ph) felt it possible to concur and Gardner and Broderick because he thought it had in effect removed the substance of Spivak against Kline and I think it is true that a lawyer cannot be disbarred or a policeman removed because he claims the Fifth Amendment but it apparently is true that both things can be done because the lawyer declines to answer questions and that seems to me to be a fairly thin line.

Thus it seems to us that the Court has at least twice decided that extended use immunity meets the requirements of the Fifth Amendment.

Murphy is not affected by the fact that two jurisdictions were involved there, there were two jurisdictions but there is only one Fifth Amendment and it is now equally applicable throughout the United States in all tribunals, federal and state.

If extended protection against use of evidence and its fruits is sufficient to sustain the validity of a state statute, it is sufficient under the same constitutional provision to sustain the validity of a federal statute.

And on this I would like to call the Court’s attention to the dissenting opinion of judge Vandosen in the Catena Case to which reference has been made 449 U.S. 40, Judge Vandosen’s opinion begins on page 46 and he considers it in some detail, the question of the — 449 U.S., folks I am sorry, federal second 449 U.S. is little added in history, 449 federal second—

Page 40.

page 40.

Erwin N. Griswold:

Page 40 and Judge Vandosen’s opinion begins on page 46.

The Court could not have decided Murphy as it did unless extended use immunity meets the requirements of the Fifth Amendment nor could it have decided Freed as it did unless extended use immunity meets the requirements of the Fifth Amendment, those cases should be controlling here.

Now, contrary to one of the counsel who appeared this morning, I believe that Counselman against Hitchcock was rightly decided, we do not ask that it be overruled but some of its language is now seen to have been too sweeping and this is one of the ways in which the law develops and the time has come for this development here.

Mr. Solicitor General, do you think we have to have one rule about use immunity in all situations?

It seems to me the interest may differ in various context, for example it was clean in Spivak and Kline and (Ph) Garide.

Erwin N. Griswold:

I am not at all sure Mr. Justice that we need to have it in all situations.

I do feel fairly sure that the same rules whatever they are should be applicable both with respect to the application of the immunity in Federal Courts and State Courts.

Yes I do no think—

Erwin N. Griswold:

I do not find any distinction on the two state basis.

What if the rule, would suggest that you were varying the rule if you said that there maybe state interest, or federal interest say such as in Murphy against Waterfront which might justify taking a risk of incrimination and in another context it would not be justified.

Erwin N. Griswold:

Mr. Justice, I certainly would not contend for a rigid fixed rule of any kind.

I do not think that there is any distinction on that basis between Waterfront and this case.

There may well be other cases such as the discipline of lawyers and discharge of policeman which would present different factors.

I have not given a great thought to them and do not now see any particular distinction but there may well be, I do think that this situation involving the seeking of the evidence of a witness for use in connection with criminal matters is not distinguishable on grounds of special situations from Murphy against the Waterfront.

There has a state interest you say here within the jurisdiction of the same hazards that counsel —

Erwin N. Griswold:

It seems to me to be exactly the same.

Now we have held in other fields where the Court has made sweeping decisions which were right and has later qualified a language, the one that first occurred to me had to do with taxation of stock dividends where the Court in Ison and Macombers said that the stock dividends are not income and cannot constitutionally be taxed.

Congress then immediately stepped in and passed the statute saying stock dividends are not taxable and it was not possible to raise any further question under that statute.

It was only through the side door when somebody was ingenious enough to raise a question with respect to the basis of stock dividends that the Court intimated that well maybe some stock dividends are taxable and in the Coslan Case, it was decided some stock dividends are taxable and Congress has now passed the statute much as it did here providing that certain stock dividends are taxable.

We have a long standing constitutional problem in this country as to the applicability of a non discriminatory tax on the income from state municipal bonds that cannot be raised directly before this Court but for the time being, because congress has enacted that such interest is not taxable but perhaps it may come up someday and the Court may find reasons to qualify some of its earlier positions, it may come up someday for example if congress extends the tax on tax preference income.

Now, the Court may well be concerned about the practical effect of a decision along the lines I have indicated.

We do not want to widdle away on basic Fifth Amendment guarantees impairing it in its important function but that does not mean that we should not perfect our understanding of it and apply it now in a way which leaves its essential guarantees in full effect, wholly unimpaired, while defining its limits in such a way as to preserve other values which are consistent with or indeed required by the constitutions.

Let me suggest the following considerations.

As to evidence, first discovered after immunity has been granted, there should be a heavy burden on the government to show that any such evidence is not the fruit of a lead or clue resulting from or uncovered by the compelled testimony.

This should not be a conclusive presumption because there can be cases where the government can demonstrate that such evidence was independently derived.

It comes in the mail for example, the day after the testimony was given and it has been post marked in France a week before.

The government can show there that the evidence it has was not a result of the compelled testimony.

You talked about a presumption and I missed the presumption that you have just told us now should not be conclusive.

Erwin N. Griswold:

I simply said that — I said burden, there should be a heavy burden on the government to show that, its evidence was not derived directly or indirectly from the compelled evidence but I said I thought it should not be a conclusive presumption.

How about the—

Erwin N. Griswold:

The government ought to be free to show if it can, that it derived it independently.

We were cited by your brother on the other side to the California case or the Court said, well it was findable, it was findable by the prosecution estrange to this testimony, do you think that would be enough for the government to show?

Erwin N. Griswold:

If it I am sorry Mr.—

I am not, well I am not quoting it but this, it was susceptible of being discovered independently of the —

Erwin N. Griswold:

No, I think the government ought to show that it did discover it independently and that it was not led into it or induced to it by—

I do not have the case in mind but he referred to some California decision—

Erwin N. Griswold:

Neither do I.

It will be rare, I think that the government will want to use or should be able to use evidence which first came to its attention after testimony was compelled and extended use immunity was granted.

Mr. Solicitor General, what about the situation that one of the counsel in one of the previous cases indicated where the government does compel the testimony and the testimony is given and this induces the prosecutor not to use the testimony except to launch an investigation and by independent means, wholly unrelated to the testimony except by the fact that it was given search out independently.

Erwin N. Griswold:

That is a hard question but I think if it can, if it does appear that the investigation was the consequence of the evidence being given, that then the evidence is something which was indirectly derived as a result of the testimony given.

Would you agree?

Erwin N. Griswold:

I would construe directly and indirectly quite broadly and I would put the burden on the government with respect to evidence derived after the testimony is given.

So but for, you would put on a but for test in the sense that except for the testimony the government would never had it?

Erwin N. Griswold:

Almost Mr. Justice, on the other hand I hate very much to give conclusions about purely hypothetical cases knowing full well the practical situations can arise which will make it to look different.

But I am perfectly agree to say that I think there should be a heavy burden on the government to show that the evidence it wants to use was not directly or indirectly derived from the testimony.

Warren E. Burger:

Mr. Solicitor General, would you agree that as a practical matter, sometimes the government state or federal will initiate an investigation simply because a particular witness answers a particular question for a grand jury by clamming Fifth Amendment immunity.

Erwin N. Griswold:

Yes Mr.—

Warren E. Burger:

That is nothing more and that will trigger.

Erwin N. Griswold:

Yes Mr. Chief Justice, I have no doubt that that may start people to thinking and or why is that and let us look up this and see what we can find and then surprisingly enough they do find something.

Warren E. Burger:

That prosecution is in Florida which has –

Erwin N. Griswold:

That prosecution is perfectly valid.

On the other hand, once you have given immunity under a statute which says that the evidence shall not be used directly or indirectly in the prosecution of the defendant, I think there is a heavy burden on the government but I want to point out.

Warren E. Burger:

Let me carry it one step further.

Sometimes when an investigation by a collateral prosecutorial agency is triggered by the mere fact that someone is subpoenaed to come before a grand jury, before he ever asks a question is it that true?

Erwin N. Griswold:

Yes it could be.

Warren E. Burger:

So that, there are many circumstances which trigger or set off investigations by law enforcement.

Erwin N. Griswold:

There are many circumstances, on the other hand here we have a statute which says that evidence compelled shall not be used directly or indirectly against the accused and I think in a proper construction of the Fifth Amendment, that that should be given a broad interpretation.

But in many cases the evidence, the government has ample evidence before the extended use immunity is granted.

The government’s need and objective is not to get evidence against this defendant but rather to get his testimony against another and usually more important defendant.

Let me take the example of a man who was arrested red handed driving a truck filled with stolen television.

They have got finger prints, they have got eye witnesses who saw every stage of it.

They have got his signature on a receipt that he signed for the goods.

There is no any question about their having sufficient evidence to prosecute him.

Proposal was made that he should plead guilty and testify against his principles and the hope that he will get a lighter sentence but he refused it.

Still, they want to get testimony against the big operators.

Erwin N. Griswold:

It is his testimony maybe essential, that the ring leaders are to be brought to justice.

As things were before 1970, his testimony could be had only at the price of giving him complete amnesty although the government already has plenty of evidence against him.

Indeed, why in the world should he plead guilty and hope for a lighter sentence where if he just sits back and knows that the he will get transactional immunity.

He could not testify against the big operator without disclosing his own guilt and thus he could sit back and demand complete immunity, another aspect of it.

Potter Stewart:

Well, well taking a hypothetical case, what on earth have you given this fellow when you are giving this kind of immunity?

You are giving him nothing at all.

Erwin N. Griswold:

You are giving him immunity against the use of the evidence which he gives and its fruits.

But by your hypothesis, you caught him red handed.

Erwin N. Griswold:

By my hypothesis, that will not — but that is all the constitution requires is that he not be required to testify against himself.

So to understand it.

Erwin N. Griswold:

And you are not going to use any of this testimony.

Incidentally, if he is — if you are required to give him transactional immunity, he can simply go in and testify and say yes I saw a murder committed.

I was standing there and refused to say anything more.

He now has complete immunity against prosecution for any part of the murder because that was a transaction as to which he testified.

With respect to use immunity, he will get immunity only with respect to what he does testify and thus he will testify much more widely and freely under use immunity and than under transactional immunity.

Giving him extended use immunity, leaves him no worse than he was before.

It does not require that he be put in a better position.

And none of his testimony or its fruits can be used against him but the evidence already available and demonstrably wholly independent of the testimony he gives remains available and can be used.

So this clearly guilty man will not go as scot free.

Let me put the same thing in another way because this has a relation to the Sixth Amendment and its constitutionally guaranteed right, the defendant shall have compulsory process of witnesses.

Suppose you are prosecuting A and B and B says, comes to the District Attorney and says I want to use A as a witness on my behalf and A says nothing doing, I cannot testify without showing I was there and that will incriminate me.

The B says to the District Attorney, we will give him immunity, and the District Attorney says nothing doing, I can only give him transactional immunity, I am not going to let him off, we know well that he is guilty.

But if the District Attorney can give him use immunity, then B can get the benefit of A’s testimony such as it is without A having to be given a pardon or amnesty.

And thus there seems to me that somewhat as in the Simon’s case where the Fifth and the Fourth Amendments were pressed together.

We have here a way in which the allowance of use immunity under the Fifth Amendment will help to support the compulsory process which is given by the Sixth Amendment.

Potter Stewart:

You are not proposing that the defense council be empowered to give a witness?

Erwin N. Griswold:

No Mr. Justice, only the — well nobody can give immunity under the statute except with the approval of the Attorney General, the Deputy Attorney General or a designated assistant Attorney General.

At that point Mr. Solicitor General, there is no Court supervision however over the granting of that —

Erwin N. Griswold:

There is Mr. Justice there is no Court supervision and I do not think there should be, this is a part of the prosecutor’s judgment but very narrowly limited, incidentally, the other parts of the statute provide that with respect to administrative agencies, the Attorney General has an absolute veto, they cannot do it unless he approves with respect to congressional committees, it requires a majority of the House of Congress or two-thirds of a committee and it must be submitted to the Attorney General for at least 20 days.

He does not have a veto power.

Erwin N. Griswold:

Now, there are arguments about the use of testimony to impeach the fact that the evidence might conceivably have some effect on cross examination.

My time is expired but I would suggest that there are problems about waiver which come into that.

If the defendant has chosen to testify, he may not have as much protection under the Fifth Amendment as he might otherwise.

Moreover, with respect to the use of the information by way of cross examination, he will have counsel, his counsel can object to the question at anytime.

And if the Court finds that question is derived indirectly by way of using the evidence which was obtained under compulsion.

The Court should exclude the testimony and if necessary it could come to this Court for review.

We think that the Court has already established that what I have found extended use immunity complies with Fifth Amendment, there are undoubtedly peripheral problems that will have to be considered over the years, but as far as this case is concerned, we think that the judgment below should be affirmed.

Is there any question in your mind that this statute 6002 would govern the use of any evidence or of its fruits in any kind of a state proceeding?

Erwin N. Griswold:

I think as far as I am concerned Mr. Justice, of course I am representing the Federal Government and state officer might feel differently, but I think under some decisions of this Court and the supremacy power, if the federal immunity is granted, it is binding on the states.

Potter Stewart:

To the full extent is that –

Erwin N. Griswold:

To the full extent.

Some of the old statute referred to in any Court and this statute says in any criminal case, now that could be construed to mean only in a federal Court, I do not think it should be.

Now, I was wondering about for example state administrative proceeding.

Erwin N. Griswold:

Well, I think it only applies to any criminal case.

I think it could perhaps be used in a state administrative proceeding or in a civil proceeding.

Or in a federal administrative proceeding.

Erwin N. Griswold:

Or federal administrative proceeding.

The statute only protects against use in criminal cases and that is all the constitution protects against.

No person shall be compelled to testify, be a witness against himself in any criminal case.

That is all the constitution says.

Well, this court has gone further — as you said with the outset from the literal words of the Amendment.

Warren E. Burger:

Manes?

Hugh R. Manes:

Mr. Chief Justice, may it please the Court.

Few remarks on my rebuttal.

First I want to state that the case I was referring to the California Supreme Court case, People versus Dickson, 57 Cal second 415 and there are several other cases that I have referred to in my opening brief of the same elk at page 40 of our opening brief.

Second point, I want to make and demonstrate through this case is that although the government here says we would give, you know — we would only rely upon the rule that the government must show that it has not discovered rather than use the discoverable rule.

I would point out to this Court that we are talking about the rules as they now exist and are followed in the various circuits and in the States, and therefore, if the Court is of a mind to be thinking in terms of use immunity, it seems to me that the very minimum that is required at this point is to straighten out the rules first before use immunity be considered as within the scope of the Fifth Amendment.

The other point, I want to make is that although the government here talks about having ample evidence before,– I will cite that example above, that accused that has ample evidence before he is given immunity, I would say to the government, why do they not get a conviction, then when they have got a conviction they can get the testimony without conferring immunity because of course, they have no reason for the rule for the privilege falls but I cannot see as Mr. Justice Stewart points out.

I cannot see giving — we already have use immunity.

I mean, no Court is going to allow compelled testimony to come in, we have that.

Hugh R. Manes:

And then the very minimum, the government must give us something more.

Now, the other point I want to make is the heavy burden that the government talks about is a losery, it is losery because although the government can seize that any testimony that aids the government in the prosecution would fall without the rule, I would point out that there are some very compelling examples to show that the government can and will benefit.

For example, when use immunity is given to a witness, he will be in a grand jury proceeding, he will be asked some other things about his witnesses.

He will giving information.

Now, the prosecutor who examines him could very well be as the case may turn out, the prosecutor would prosecute him ultimately and will have the benefit certainly of information on which to draw his cross examination.

But even more compelling in the fact that in this particular context we are dealing with a series of problems and rules that as that I pointed out exist and there is no way to escape from them, we have rules for example that come from Wang San and Adonis which talk about well a little bit of evidence if it is tainted is alright, if it is attenuated.

Now, if you are going to talk about defining what are the Fifth Amendment privileges?

Is whether use immunity is as broad as the Fifth Amendment privilege, the Fifth Amendment says nothing about allowing a little bit of tainted evidence to be compelled and used against the accused.

When we are talking here about the developing rules, we have our Chaplin versus United States saying that the announcing the harmless error rule.

Does that mean that if a Court ultimately concludes that well, a tainted evidence perhaps was used from the mouth of the accused but after all it is harmless in terms of the total context of the case, have we not then abridged the rule?

And these are the rules we respectfully submit that are used to define the use immunity and use immunity therefore comes to use something like “humpty dumpy,” once the egg is broken, it can never be put together again the same way.

Thank you.

Warren E. Burger:

Thank you Mr. Manes, thank you Mr. Solicitor General.

The case is submitted.