Malloy v. Hogan

PETITIONER:Malloy
RESPONDENT:Hogan
LOCATION:Apartment

DOCKET NO.: 110
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 378 US 1 (1964)
ARGUED: Mar 05, 1964
DECIDED: Jun 15, 1964

Facts of the case

William Malloy was arrested during a gambling raid in 1959 by Hartford, Connecticut police. After pleading guilty to pool selling, a misdemeanor, he was sentenced to one year in jail and fined $500, but the sentence was suspended after 90 days and Malloy was placed on two years probation. Some 16 months following his plea, a Superior Court appointed referee ordered Malloy to testify about gambling and other criminal activities in Hartford County. When Malloy refused, “on grounds it may tend to incriminate [him]” he was imprisoned for contempt and held until willing to answer questions. Malloy filed a habeas corpus petition challenging his confinement. On appeal from the Connecticut Supreme Court of Errors ruling, upholding an adverse Superior Court denial, the Supreme Court granted certiorari.

Question

Does the Fourteenth Amendment protect a state witness’s Fifth Amendment guarantee again self-incrimination in a criminal proceeding?

Earl Warren:

William Malloy, versus Patrick J. Hogan, Sheriff of Hartford County.

Harold Strauch:

Mr. Chief Justice.

Earl Warren:

May I ask sir, just how you pronounce your name?

Harold Strauch:

You think of grouch, it’s easy Strauch.

Earl Warren:

Grouch, Strauch, very well Mr. Strauch you may proceed.

Harold Strauch:

This — Mr. Chief Justice and members — and may it please the Court.

This I believe is an uncomplicated case, which modestly requests of this Court a ruling that the Fifth Amendment applies to the individual states.

I think that the facts in the case, which are very brief, should be annunciated.

In September of 1959, in the state and local police officials in concert conducted a raid throughout the Hartford County Community and caught a number of individuals including the petitioner and two others.

Incidentally, the case that will be decided here, the decision of this Court will be binding upon the other two as well as on the particular petitioner that’s mentioned in this case.

These three gentlemen were caught in an apartment, in one of the large apartment houses in Hartford, where presumably they were manning telephones, collecting bets and relaying the bets to a central source.

The petitioner was found guilty of pool selling.

What is that, is that a potential crime?

Harold Strauch:

Pool selling it’s what is known as —

Pool?

Harold Strauch:

Pool selling, it’s a misdemeanor, it’s a gambling.

It’s booking.

He was — the petitioner was found guilty of pool selling, which is a misdemeanor in Connecticut, given a one year sentence in the county jail, which was audit suspended after 90 days but then he was put on probation for a period of two years.

Subsequently, in January of 1961, a special — the equivalent of a grand jury investigation was brought about and the former Chief Justice of State of Connecticut was the Grand Juror.

And the — these three people were called before the Grand Jury and Malloy, in particular, was asked a series of six questions, which he refused to answer, basing his refusal upon the Fifth Amendment as supplemented by the Fourteenth.

The questions that were asked of the petitioner were as follows For whom he worked on September 11, 1959, which happened to be the day of the raid?

Who selected and paid his counsel in connection with his arrest on September 11, 1959 and paid for his subsequent appearances in Court due to that arrest?

Who selected and paid his bondsman, who paid his fine, the name of the tenant of the apartment in which he was arrested, and whether or not he knew one John Bergoti?

As a result of his refusal to answer these questions, he was found guilty of contempt, which was confirmed by our Supreme Court of Errors, and as a result of that we are before this Court.

(Inaudible) a civil contempt, criminal contempt —

Harold Strauch:

I would think it’s criminal contempt sir.

Does it get a sentence of which term?

Harold Strauch:

He was fined — he was sent to the county jail until he purges himself of his contempt or until the court releases him.

In other words, the threat that was over him was that he remains incarcerated until he releases himself from prison by confessing or answering the questions that were asked of him and that could possibly incriminate him.

Is he still in prison?

Harold Strauch:

No, he is out on bail.

A habeas corpus action was brought and he was out — and he is out on bail.

Did you say there was a fine too?

Harold Strauch:

No there was no fine sir.

Well —

(Inaudible)

Harold Strauch:

That would be by interpretation of it under what I think is the Jackson case that we have in Connecticut.

Is it adequate?

Harold Strauch:

Yes, I think it is.

Ordinarily, when the fellow has the keys, who was on release, it’s a civil contempt isn’t it?

Harold Strauch:

I maybe wrong about that, but in any event this sort of action is considered a criminal proceeding.

Cases have held — Cases have held that —

And they treated it for the purposes of habeas I gather.

Harold Strauch:

That’s right.

As a criminal procedure.

Harold Strauch:

That’s right.

Potter Stewart:

You mean the underlying the investigation by Judge Inglis.

Harold Strauch:

Oh, the purpose of the investigation was to — let me see, I’d like to get that specifically.

It was to investigate — purpose of the Grand Jury was to investigate crimes in Hartford County including gambling activities.

So that —

Potter Stewart:

This was the Grand Jury.

I thought it was the —

Harold Strauch:

Well, it was a special investigation.

Potter Stewart:

Judge Inglis.

Harold Strauch:

Judge Inglis sat as a special investigator in a Grand Jury atmosphere.

Potter Stewart:

There was no grand jury, was there?

Harold Strauch:

Other than he was the equivalent of a Grand Jury in my opinion because —

Potter Stewart:

Well he was the equivalent, but there wasn’t a Grand Jury?

Harold Strauch:

No, no but he was acting as the equivalent of a Grand Jury.

Counsel was not permitted to be there.

Harold Strauch:

Only the state’s attorney, the stenographer, and the witnesses as they were called in, one at a time.

What it is that you —

Harold Strauch:

He was appointed I believe by the courts.

By the courts?

Harold Strauch:

Yes, I believe that was true, under a statute — under a statute, which permits that to be done.

You don’t have this one man Grand Jury procedure, do you?

Harold Strauch:

No, I don’t think so.

Well with whom does he file — with whom does he file his report?

Harold Strauch:

He filed it with the superior court, which has jurisdiction of this sort of matter.

And they found (Inaudible)?

Harold Strauch:

That’s right sir.

But then they have to go through the ordinary formalities, do they, or how do you prosecute for information or indictment?

Harold Strauch:

Information.

So there might be a prosecution for information —

Harold Strauch:

That’s right sir.

— that’s on the report, is that it?

Harold Strauch:

Right, sir.

Byron R. White:

And that was provided by the authority of the —

Harold Strauch:

A state statute.

Potter Stewart:

A statute.

Harold Strauch:

That’s right.

Potter Stewart:

54-47, which appears on page A4 of the appendix to the — of page three, is that right?

Harold Strauch:

Absolutely, that’s right.

I think that a reasonable point to start this case is to go back to that famous case of Barron versus Baltimore, where Chief Justice Marshall held for the first time that the parastate amendments apply to the federal courts only.

Of course thereafter in 1866 when the Fourteenth Amendment was applied or was adopted, we believe a different situation was created.

And as a result of the adoption of the Fourteenth Amendment, a series of provisions of the Bill of Rights was taken over or incorporated as part of the fundamental law of the land.

And those amendments were the First Amendment, the holding of free speech, freedom of religion and so forth; the Sixteenth Amendment giving the accused the right to counsel in Powell as decided in Powell versus Alabama and recently in Gideon versus Wainwright; the Eighth Amendment, relating to the banning of cruel and unusual punishment as set forth in the Robinson and California case, also a portion of the Fifth Amendment relating to the taking of property for public purposes without just compensation, as set forth in the Chicago, Baltimore & Q. Railroad versus the City of Chicago case.

(Inaudible).

Harold Strauch:

Yes sir.

You are putting a very large question to the Court obviously.

Now, are you going to address yourself to the question as to whether we have to reach this question in this case?

My understanding is that the decision of the Connecticut Court went on two grounds, number one that without giving some explanation as to how testifying about bet holds might affect this man.

They couldn’t say that he had a valid plea of self-incrimination.

Number two that as far as his prior conviction was concerned, there was no ground for asserting his privilege, because the statute of limitations is run.

And the question I am putting to you is assuming the broader premises that you are now arguing to the Court, which present us with frankly with overruling a host of decisions from this Court.

Harold Strauch:

That’s right.

Assuming your premises, as a matter of federal law, would this be a — would this be an invalid conviction —

Harold Strauch:

Yeah.

— to the federal stand.

Harold Strauch:

Yes.

Under the — first of all we deny that at least that the petitioner had limited himself only to the commission of misdemeanors for which there was only a one year statute of limitations and which statute had told by the time that Judge Inglis (ph) had entered the picture.

Secondly, we assert that he could have been readily involved in a series of felonies for which there is a five-year statute of limitations.

And if he were engaged in a conspiracy to commit felonies, there is a 15-year statute of limitations.

And our contention is that the court erred, our State Court erred, when it said that he could not possibly incriminate himself because the statute of limitations had intervened.

It hadn’t in our judgment.

Further that this being a constitutional question that if the Fifth — sort of the Fourteenth is held to apply so that our court — so that the State Court had to conform to the Due Process Clause of the Fourteenth, then the standard of constitutionality had to be the federal standards, as set forth in the Ker case and also perhaps in the Fahy versus Connecticut case, which was heard last December It’s the federal standards when you reach a constitutional question that apply and those federal standards as they are demonstrated through the decisions of this Court.

In Connecticut, the Court used a standard that the judge in determining whether or not the questions were harmful could exercise reasonable judgment and that — and he had to act as a reasonable person and reasonably conclude that the questions would be damaging to the witness.

Whereas in the federal cases such as in the Hoffman case, the Singleton case, the IUPA case and Mathy case and so forth, it’s held that the standard that must be used is not the heavy strong standard of reasonableness, as whether or not in the context of the situation the width that can be concluded that the witness would incriminate himself by his testimony.

There is a substantially lesser standard that was to demonstrated that I think is early as in the Burt trials.

When Chief Justice Marshall said in effect that if the witness testifies, swears under oath, that the questions are incriminating, that is enough.

And it’s also in cases — in the Hoffman case.

It says that if the witness is to try to explain why the questions will be damaging to him, he is exposing himself to the hazard that he is seeking to avoid, and that has been repeated, I think even in the Mathy case, which I think said that even the mere possibility that the questions, the answers to the questions will be incriminating, is sufficient to permit the witness the immunity of silence.

There is also of course, which I hadn’t mentioned up to this point, the application of the Fourth Amendment through the Fourteenth to the states through the Wolf case, and Mapp case and the Ker case.

This is a case upon which, to be perfectly candid, we hope the premise our hope for a reversal of what is the common practice of the (Inaudible) with reference to the application of the Fifth Amendment to the states.

In arriving at the conclusion that various aspects of the Bill of Rights do become applicable to the states through the Fourteenth Amendment, various formulas were devised and cited saying that the constitutional question that — amendment that is in question applies to the states if it is implicit in the concept of ordered liberty, if it is of the very essence of a scheme of ordered liberty, if it is a principle of justice so rooted in the tradition and conscience of our people as to be ranked to be fundamental, if it is — and it applied this amendment in the Palko case or it mentioned this amendment, this formula in the Palko case as a policy of absorption that has its source and the belief that neither liberty nor justice could exist if they were sacrificed.

Another formula was that the constitutional provision is a fundamental principle of liberty and justice which lie at the base of our civil and political institutions.

It is fundamental and essential to a fair trial.

It is natural law or a natural right and also it is an absolute right, the latter however has not got beyond the stage of a descending opinion.

Now —

(Inaudible) Adamson, Snyder against Massachusetts and —

Harold Strauch:

That would not be to — that is something that —

A couple of those and other cases.

Harold Strauch:

Well, it isn’t that the Supreme Court has never reversed itself; sometimes it does it at a slower pace and sometimes at a faster pace.

(Inaudible)

Harold Strauch:

I beg your pardon

You start with four members of this court have already indicated those cases that have ruled.

Harold Strauch:

That’s right, but now unless there comes a point when there must be a determination so that there will be one uniform set of laws, it seems to me, throughout the country.

If these formulas are valid, and I assume that they are, I have never been able to determine why the members of the court, which have ruled that the Fifth Amendment does not apply to the states, have conceived that the — that the right not to incriminate oneself is not as basic and as fundamental and as essential to justice in a fair trail, and is as firmly rooted in our traditions as say the right to counsel as in the Sixth Amendment, or the right to be protected against illegal searches and seizures as in the Fourth Amendment.

It seems to me that the right to have — the right to be protected against this unreasonable searches and seizures is an indirect way perhaps of self-incrimination.

The Court has been willing to say that one need not incriminate oneself indirectly in the case of search – unreasonable searches and seizures.

If that is true, it seems to me that the Court should be equally willing to say that one should not directly incriminate oneself by the words from his own mouth.

It strikes me that the Fifth Amendment is as essential in all of these formulae as were the basis for permitting other sections of the Bill of Rights to be made applicable to the states.

Now if, as I say, searches and seizures are considered to be a part of the law of the land applying the Fourth Amendment to the — through the Fourteenth to the states, there is no valid logical reason why the Fifth Amendment can’t be equally applied.

Now in trying to read the history —

(Inaudible)

Harold Strauch:

Well, that reminds of Fairman and Morrison on the Fourteenth Amendment, who I think are in opposition to Justice Black.

In the two Stanford Law Reviews — Professor Fairman has his historical record of what happened in connection with the adoption of the Fourteenth Amendment which incidentally is refuted somewhat by Flack in 1908 on his interpretation of the Fourteenth Amendment.

And Morrison who was also a professor at the Stanford Law University has a supplementary article and oddly enough he says in that article in effect that once the Court ruled that the First Amendment became applicable to the states, there is no logical reason why the remaining amendments shouldn’t be applied to the states, and I’m willing on that point to take him as an authority.

Potter Stewart:

What are the remaining amendments?

Harold Strauch:

I beg your pardon?

Potter Stewart:

What remaining amendments there have been now what 23, 24 Amendments.

Harold Strauch:

No I’m talking up to the Bill of Rights.

I mentioned the eight amendments to the Bill of Right.

Potter Stewart:

First eight eh.

Harold Strauch:

I beg your pardon.

Potter Stewart:

The first eight amendments?

Harold Strauch:

Yes sir.

And that is what Professor Morrison said.

I beg your pardon.

(Inaudible) case.

Harold Strauch:

I want you to go as far as my particular case is concerned and worry about the other cases in the future as they come up sir.

You just want to clear.

Harold Strauch:

I ben your pardon.

I’m not willing to be a pioneer beyond reasonable grounds, distances.

Now if I may refer to the respondent’s brief —

Potter Stewart:

Before you get to that, I would — I just reread the opinion of the Supreme Court of, where was it, Connecticut, Justice King’s opinion, and it seems to me that, he cites good many more federal cases and he does state cases.

Harold Strauch:

Oh yes.

Potter Stewart:

He cites the Hoffman case four, five times, that’s the one you’re relying on.

Harold Strauch:

But I think incorrectly sir.

Potter Stewart:

And he seems to equate the privilege that you’ve guaranteed under the Connecticut constitution to the privilege which is guaranteed under federal constitution, he seems to be applying a federal test all the way through here.

Harold Strauch:

No I just —

Potter Stewart:

Maybe incorrectly but —

Harold Strauch:

The Court said —

Potter Stewart:

I don’t really see, I have difficulty in seeing that the — this big question to which you are addressing yourself is before us at all.

Harold Strauch:

Well —

Potter Stewart:

He cites cases in this court and cases in the United States Courts of Appeal, all the way through in the —

Harold Strauch:

I am reasonable.

Potter Stewart:

(Inaudible) and text be questioned which this witness refused to answer, under those federal tests all the way through the opinion.

Harold Strauch:

I am reasonable sure that every time a state court is, most of the times the state court is reversed by this Court, the state court has cited federal decisions and nevertheless been overruled.

I don’t think that’s binding on this Court.

My impression of that decision is that it’s erroneous that it applied rigid state standards which were far greater than the standards that are required in connection with the application of constitutional provisions as set forth in the Ker case, and I think the Ker case is binding more so than the Supreme Court decision of the State of Connecticut that you are referring to at the moment.

(Inaudible)

Harold Strauch:

It said the Fifth Amendment was not absorbed by the Fourteenth.

It says the Fifth Amendment does not apply as such to state court.

Potter Stewart:

Well you don’t quarrel that, do you?

Do you quarrel with that?

Harold Strauch:

I say it does, that’s —

Potter Stewart:

Fifth Amendment applies to the state —

Harold Strauch:

— through the Fourteenth that’s my whole point —

Potter Stewart:

Then read the next sentence.

Harold Strauch:

However, the Fourteenth Amendment probably, probably does prohibit a state court from so ruling.

But they say they are applying constitutional standards and the constitutional decisions and the decisions of this court in applying constitutional standards.

And I don’t agree with that, because as I said before, and this is my whole point, they — they applied a rigid high standard as to — as to whether or not the person was required to testify because on the ground that the testimony couldn’t be incriminatory.

We say that testimony could be incriminatory and the court should have applied the federal standards in Hoffman and so forth, mainly that if it’s merely possible that it will be incriminatory that’s sufficient to exclude the answers.

(Inaudible)

Harold Strauch:

Well I differ where — I differ where it says the Fourth Amendment does not apply.

I think it applies through the Fourteenth.

Now the Fourteenth, in its guarantee of due process, does prohibit from so ruling on the claim as to violate the fundamental concepts of the justice.

I agree with it.

I merely say it wasn’t applied.

(Inaudible)

Harold Strauch:

Right, yes and I also —

(Inaudible)

Harold Strauch:

That’s right, and I also say that this Court has the power under Ker again, in determining whether or not constitutional standards were properly applied to review the entire case and make its decision based upon its review.

(Inaudible)

Harold Strauch:

Yes, but again as I say I disagree with the court because it had no basis at all for concluding that this party was involved purely in this particular misdemeanor and is limiting himself to this particular misdemeanor.

He might have committed a misdemeanor up until the day that he was heard before Judge Inglis, at which point the statute of limitation had not told.

If I can get in a few minutes I have left to the respondent’s brief and if I read it correctly and despite — was that to stop me sir?

No, and despite what, might be said by — here this morning, it seems to acknowledge the probability that this Court will concede or conclude that the Fifth Amendment applies to the states through the Fourteenth.

And this fear was sensed in the amicus brief from the State of California where on Page 2 in the first paragraph, it sort of criticized the Connecticut brief for making this seeming concession.

Basically, I think that the, the state of the respondent will argue that if the Fifth Amendment should be held to apply to the states, the state courts apply the constitutional standards in its findings of contempt, and that’s the question that you raised Mr. Justice on the ground that the questions were harmless and couldn’t incriminate and in any event that he had paid his penalty couldn’t be put in double jeopardy and the statute of limitations had to intervene.

We don’t, we don’t concede that the questions were harmless.

The investigation was not limited to gambling.

It was an investigation of the crime in general.

We don’t know what crimes the petitioner is less engaged in or whether or not he was engaged in crime at the time the Judge Inglis was taking (Inaudible)

The fact is he was a convicted criminal.

He was probably like the shoemaker sticking to his last.

There is nothing in the record to indicate to the contrary, and there was no obligation upon us to explain whether or not he was involved in any such, in any crime.

And I think that the cases that hold — we don’t have to give any — explain why we don’t have to testify as set forth, as I said in the Burt case, in the Mathy case, and in the IUPA case, it says, where it was pointed out that the witness alone would know whether an answer to a particular question might or might not incriminate him and accordingly if the witness should say under oath that his answer would incriminate him, the court can command no other testimonies to the facts.

That’s a federal standard, that’s a standard that should have been applied it seems to me in Connecticut.

Harold Strauch:

Now if I have a few minutes left I think I would like to reserve it for a possible rebuttal.

Earl Warren:

Mr. LaBelle.

John D. Labelle:

Mr. Chief justice may it please the Court.

I would like to talk about the facts for just a moment before we get on with some of these other issues.

Chief Justice, former Chief Justice Inglis, was appointed what we call a one man grand jury for purposes of conducting this investigation.

That’s under the statute 54-47.

He is an experienced judge, trial judge for many years, a former Chief Justice who had just been retired and was then State Referee, a man of extreme and very wide experience.

This investigation with respect to this case involved a booking operation.

When the petitioner was arrested along with two others, they were in an apartment house in Hartford operating what is known in the bookie business as an office.

And I know the court is familiar with the booking operation in the office, and in this office they keep the records.

They have to have a writer.

(Inaudible)

John D. Labelle:

In this instance Malloy was one of the writers along with the two others.

They were simply employees of this bookie operations.

That’s the extent of their involvement.

And when they were arrested all of the records of the office were there.

He was convicted, Malloy was, and after his conviction and after the statute of limitations of one year had run, he was called before this Grant Jury and asked these questions.

Now Malloy had no prior criminal record of any extent, one or two misdemeanor charges involving motor vehicles and one or two involving intoxication.

Other than that, no record.

He was an old racketeer, he wasn’t a gambler in the sense that he was the object of this investigation.

He wasn’t known as a racketeer or had a reputation as such.

He was simply an employee of this operation that was running the booking game.

Now when he got before this Judge Inglis, he refused to answer the questions put in the record.

Now when he asserted his privilege, the first thing that he did here was not tell Judge Inglis, why he thought he would be incriminated.

And to this day, there has not been any indication of what fear of incrimination he had.

There has been vague talk here about conspiracies or conspiracy to commit some felony, but not once either in this Court or in the lower court or in the Supreme Court of Connecticut and in argument this morning has anyone said what crimes he was concerned about incriminating himself with.

Now that is the first —

(Inaudible) you said with regard for the Court?

John D. Labelle:

Counsel at least or somebody should have informed the Court in some manner and if they worrying about a link in the chain of circumstances counsel could have done it.

They could have told Judge Inglis or had his man tell Judge Inglis and the Grand Jury, or he himself in the Court when the contempt was brought had notified the Court what crime that they were concerned about or given the Court some inkling of why he had some fear of incrimination.

William J. Brennan, Jr.:

Well, (Inaudible), would he have that burden?

John D. Labelle:

He would had to do the same thing under the Hoffman Rule, of course he would, of course he would.

There isn’t any Court that’s held yet that I know of, that says that he can simply say, I will not answer because I fear incrimination and that’s it.

That’s what’s happened here.

I don’t think there is any rule that I know of been annunciated that says that he doesn’t have to give the Court at least some inkling.

As Mr. Justice Brennan wrote some years ago, he must given him at least a sense.

William J. Brennan, Jr.:

You’re throwing pillow back at me?

John D. Labelle:

No, the word was good though [Laughing attempt].

He must at least give the Court some sense of what he fears.

William J. Brennan, Jr.:

I was a state judge when I wrote that.

John D. Labelle:

Yes, that’s correct Your Honor.

Now that’s what happened in this case factually.

Now the questions are not questions that we’re trying to snare this man, it’s obvious from the questions that we were trying to find out, who ran this booking operation and who was the one behind this office.

Who was he working for, whom he was working for?

Now Malloy was not anyone that we needed or wanted or had any reason to try to snare him and his record doesn’t indicate any such thing.

So that he simply, after he has — his incrimination had been expurgated by conviction, by the statute of limitations running, said I’m going to answer.

And the first time he went into the Grant Jury, by the way he didn’t answer anything, he didn’t answer any questions.

Then Judge Inglis, in his wisdom, said you go out and discuss this with counsel and he continued the case for ten days, and he came back in the second time and he did answer a couple of questions, but other than that he took the same position with respect to these basic questions that were presented the second time.

Now counsel had suggested that this Court apply the Fifth Amendment to the states in all its suite, and I don’t concede that that is the issue.

In our brief, we have said that the pronouncements of this Court make us realize that no state is free to compel incrimination under the Due Process Clause.

I think that’s a fair statement.

40 — I beg your pardon Your Honor.

(Inaudible)

John D. Labelle:

It’s said in your confession cases, it’s said in I think all —

(Inaudible)

John D. Labelle:

They are Fourteenth Amendment cases and we’re talking about Fourteenth Amendment today, I say that the Fourteenth Amendment requires the states not to incriminate.

That doesn’t mean necessarily that the Court has to incorporate the Fifth Amendment.

I think due process, as required by the states, means that one of the things that the state cannot do any longer, if they ever could, is compel a witness to criminate himself.

(Inaudible)

John D. Labelle:

I don’t know — I don’t either accept the — well in Rogers and Richmond case for example where —

Coerced confession cases.

John D. Labelle:

That’s correct I think that the coerced confession cases are Fourteenth Amendment cases where the Court has been involved in a fiction.

(Inaudible) coerced confession cases to the Fifth or —

John D. Labelle:

No.

— compel it to the states, compelling testimony, absent the employee’s confession.

John D. Labelle:

I’m not saying Your Honor that the Fifth Amendment applies to the states.

I am saying that the Due Process Clause of the Fourteenth Amendment requires states not to incriminate witnesses.

And I say that because all of us, 48 states have got constitutional provisions with respect to —

Potter Stewart:

That’s a different reason; that’s an entirely different reason.

John D. Labelle:

Well also, with respect to the Due Process Clause of the Fourteenth Amendment, my position is that that’s procedural due process which this Court can look at.

I don’t claim that this Court doesn’t have any jurisdiction here to look at this question.

I think that under the Fourteenth Amendment, this Court has the right to examine what we did, with respect to incrimination and to see whether or not due process was given.

Now that is the position I take, and I think that basically due process prohibits states to compel a witness to criminate himself.

Now we have applied all of those requirements of due process in this case, every one of them.

We’ve followed even, if you will, the Federal standards as set froth in Hoffman, but we’re not required to do that as long as we have pro– as long as we have complied with what is I can consider or what has been called procedural due process that is due under the Fourteenth Amendment that the states are charged with in and off itself.

Potter Stewart:

Whether or not your Supreme Court of Errors is required to do so, don’t you read their opinion as having —

John D. Labelle:

Yes.

Potter Stewart:

— having — having tried to follow federal standards?

I’ve just counted it up and they cited the Hoffman case in that opinion more often than any other single case.

John D. Labelle:

I certainly do and our brief certainly covers that.

I think that we did follow the Hoffman rule.

Potter Stewart:

Whether or not you’d follow it at least they seem to be feel — bound by those precedents or at least divided by them.

John D. Labelle:

Judge King in the reference Your Honor made to the last page of the opinion, the last paragraph I believe it is where he said that the question could be looked at as to whether or not he had a fair trial.

Again, procedural due process, and in this case our court did follow this procedural due process.

Now I don’t say that this is an incorporation of the Fifth Amendment into the Fourteenth.

You start off with the states being bound by the Fourteenth to give due process in criminal proceedings, and in this instance, the state has done just that.

I see no basis for the claim that whatever standard has to be applied that the standard that this Connecticut court applied was any different or lesser than the standards that federal court would have applied under the Hoffman Rule.

I think that we have complied with that, take it that.

I would have the rest of my time after the luncheon recess.

(Inaudible)

John D. Labelle:

Yes, all right.

The petitioner has suggested that all of this Court’s many cases be overruled because the Fifth Amendment automatically applies to the states, I of course do not agree with that whatsoever, and I see no reason in this case for instance to have anything to do with Twining and New Jersey or the Adamson case.

The only thing that in those cases that this Court might need to consider at all is some of the sweeping language which seems say that a state can compel incrimination.

It has nothing to do with overruling them, it has nothing to do with this, whether or not the Fifth Amendment is incorporated into the Fourteenth.

Insofar states are concerned, the only thing that’s in there that could be question whatsoever and that — by any structure, the imagination might need clarifying is the question of this broad language that a state might compel incrimination.

I don’t think that that is so under the Fourteenth Amendment.

However, there is no reason to overrule any of those decisions.

Now with respect to Adamson and Twining, for example, this Court has never said that the issues raised in those cases were issues — never had to decide those issues because it isn’t — the question has never come up.

May it please the Court.

The question was raised earlier as to what kind of a contempt this was, and I meant to say that in my initial remarks about the facts that this was a civil contempt.

They are held as a civil prisoner and, as Your Honor has remarked, they hold the key to getting out, so that it is not a criminal contempt.

(Inaudible)

John D. Labelle:

Yes, he brought a habeas corpus action here, you see what happened was the Judge Inglis, the investigating Grand Juror, didn’t have any right to hold him in contempt.

It required the state’s attorney to bring a proceeding in the Superior Court, a complaint asking that he’d be held in contempt.

He then was brought into the Superior Court where a hearing was held on these questions.

Then he was held in contempt, put in jail, and he brought a habeas corpus that afternoon.

Then on the habeas corpus hearing on the civil side of the court, the same question was gone over as to whether or not he was being properly held as a civil prisoner.

(Inaudible)

John D. Labelle:

Habeas corpus is still a proceeding in our state.

It’s handled on the civil side of the Court.

the presentment by the state’s attorney for failure to answer the questions was a proceeding in the criminal side of the Superior Court, who was the superior — criminal side is the one who appointed chief, ex Chief Justice Inglis as the Grand Juror.

(Inaudible) case rose as an appeal, did it from the —

John D. Labelle:

From the habeas corpus, that’s correct.

So it comes up under the civil side.

But again in the habeas corpus and in the contempt proceedings themselves the same questions were gone into so that he had an opportunity here before Judge Inglis to state why he was — what his fear of incrimination was.

He had the opportunity before the criminal side of the court on the complaint for contempt, and he had the opportunity in the habeas corpus hearing, and yet to this day we haven’t found out what he was fearing.

Now, I would suggest that in this instance it is not a question here as to the nature of a state being free to compel incrimination that is.

I think all of the states must abide by their own constitutional requirements and with respect to self-incrimination.

The question here is the dimension of that privilege.

That is what is involved here.

John D. Labelle:

And so far as states are concerned that dimension only applies to their own jurisdiction.

In the next case that’s going to follow, that issue will be expanded because you get into the question of the immunity that’s granted in these different states.

I might say right here that in Connecticut we haven’t any general immunity statute.

We have some immunity statutes that apply to some administrative agencies but insofar as the criminal side the court is concerned, we don’t have a general immunity statute.

Therefore the test that our court applied here with respect to the burden on the petitioner to tell the court something about his fear is certainly understandable, because we haven’t any way of getting any place in Connecticut in an investigating nature, if all he can do is say I assert my privilege and that’s it.

Now that’s conceivable — it is conceivable for instance in another state where the immunity is granted and granted freely, all they have to do is if he asserts his privilege to grant him the immunity, then I — how they do it in these other states I’m not certain, my understanding is that they are not concerned so much with any explanation under those circumstances as we might be in Connecticut.

But in Connecticut at least we ought to be told certainly by argument at least of counsel because that doesn’t incriminate anyone, what the fear is and what crimes that he is worried about being prosecuted for.

(Inaudible) say that the argument of counsel in determining (Inaudible).

John D. Labelle:

Yes.

(Inaudible)

John D. Labelle:

He doesn’t have to tell what the offence is, but I think that there is some burden here on the petitioner to say to the court, I fear incrimination because and give us something that, well, the Court in its judgment and its wisdom can apply.

(Inaudible)

John D. Labelle:

No.

(Inaudible)

John D. Labelle:

No, he should not of course not, but he cannot remain silent and simply say, I assert the privilege.

It requires more than that, and in this instance nothing has been done about that except to say, I fear incrimination and I refuse to answer.

And in this case he refused to answer all questions the first time he was there, and then the ones he did answer were very innocuous questions that had nothing to do with the investigation particularly.

(Inaudible)

John D. Labelle:

No Your Honor, our conspiracy statute requires us — of course, you have to conspire to do something, and in this conspiracy, his conspiracy would have been pool selling conspiracy, at least that’s all we can find from the circumstances.

(Inaudible)

John D. Labelle:

Well, if it was any other conspiracy certainly some inclination ought to have been given, but under the studying of the case all of the facts before the Court, there was nothing to indicate any involvement in anything other than this pool selling employment.

Well suppose, suppose they have an opportunity to (Inaudible).

John D. Labelle:

I think under those circumstances if Your Honor please, and this is one of the questions that the Connecticut Supreme Court raised that he made the argument and has made it of this date conspiracy that he was concerned with, but this — under the circumstances of the case and all of the facts before the Court, this man was not involved in anything only pool selling.

Now if the conspiracy was to violate the pool selling statute, that — statute of limitations for that conspiracy is a misdemeanor also.

And there is nothing in this case anyplace to give the Court any inkling that this conspiracy he has been talking about is any conspiracy other than involves a conspiracy to violate the pool selling statute and that is a misdemeanor under the statute of limitations.

May I ask you what perhaps (Inaudible)?

John D. Labelle:

That’s correct.

I recognize that in that type of an investigation that there is more leeway that has to be given to a witness.

Insofar as this witness was concerned, he was not interrogated about anything other than this one pool selling operation.

In other words this — the mandate to the Grand Juror to investigate crime covered a lot of areas, but with respect to this defendant, the petitioner in this case, he was only questioned and only involved in this one pool selling matter.

(Inaudible)

John D. Labelle:

Yes.

(Inaudible)

John D. Labelle:

Yes.

(Inaudible)

John D. Labelle:

We have a waiver doctrine and I would say that our doctrine of waiver isn’t one that that you can insert at anytime that you want.

If you open the door, then you are subject to answering the questions.

In this instance, the waiver never came into effect and he — again, if he had ever told the Court what he feared, any inkling of it, the Court would have certainly taken that into consideration under the circumstances.

But here was a man who had absolutely no background of any criminality whatsoever.

(Inaudible)

John D. Labelle:

Other than this one instance that we were questioning him about.

In other words he hadn’t had any prior pool selling record, he didn’t have any prior felony convictions, he was not known to be involved in any syndicate or any operation of a bookie nature other than this one for which he had just been convicted.

(Inaudible)

John D. Labelle:

He was on probation at that time and had been convicted, it was a little over a year, he had served his sentence.

But we never went outside that one conviction and the questions were limited to the day that was arrested.

(Inaudible)

John D. Labelle:

Because we were looking to see who he was employed — whom he was employed by.

(Inaudible)

John D. Labelle:

It might have been, but again for information purposes, we might have been glad to know it.

Well they may have still been in operation too.

We —

(Inaudible)

John D. Labelle:

He was on probation at the time.

Presumably not involved in any other illegal activities.

(Inaudible)

John D. Labelle:

No, I don’t claim that.

This question was asked about the single day of his arrest.

That’s, on the day of his arrest for whom was he working.

That’s what we wanted to know.

And here he was using his privilege to protect a third party.

(Inaudible)

John D. Labelle:

Yes, they all had to do with the same arrest, the same day, and I happen to be the one asking the questions and I tried to hold him to the same day for which he had been arrested.

(Inaudible)

John D. Labelle:

Yes.

It’s in the record on page 20.

I ask you again Mr. Malloy now, so there will be no misunderstanding of what I want to know, when you were arrested on September 11, 1959 at 600, Asylum Street in Hartford, and the same arrest for which you were convicted in superior court on November 5, 1959 for whom were you working.

(Inaudible)

John D. Labelle:

I don’t think so specifically Your Honor.

(Inaudible)

John D. Labelle:

I would say not.

(Inaudible)

John D. Labelle:

I would say not.

(Inaudible)

John D. Labelle:

Well I only asked him about a half a dozen, I wasn’t getting any place.

I asked him all — there are perhaps 10 or 12 questions here and the second time he answered one or two.

For instance, I asked him while he was serving his sentence in jail did he continue to receive his salary or get paid by his employer.

He said no, and I asked him if his family had received any help from his employer or anyone while he was in jail.

This is on his sentence now for the pool selling conviction we were talking about, and he said no to that.

But —

(Inaudible)

John D. Labelle:

No I never claimed that.

That isn’t in this case.

(Inaudible)

John D. Labelle:

Yes.

(Inaudible)

John D. Labelle:

Yes, I never claim that in this case and I don’t know; it isn’t in the case, the waiver is not in.

(Inaudible)

John D. Labelle:

Oh yes.

(Inaudible)

John D. Labelle:

I asked these questions that are set forth in the record.

John D. Labelle:

This is all — by the way this is all of the testimony with respect to this witness, it’s all right here.

There wasn’t any other and everything is right there.

This is the complete transcript of what went on when he was in the — before Judge Inglis both times.

So that we weren’t away from this particular one issue, we stayed right on it.

(Inaudible)

John D. Labelle:

No I do not.

I suspect, you are saying (Inaudible).

John D. Labelle:

That was simply Your Honor to show that in the setting which Judge Inglis was hearing, this man was not a man that there was any publicity about of being in the rackets or being a gambler, there was no information before the Court or the Grand Jury that this man was involved in anything other than his employment as a writer in the office.

(Inaudible)

John D. Labelle:

Well I don’t care to put it in quite that — from that point of view, but I think it’s a fact that the —

But that so far is true.

John D. Labelle:

It’s a circumstance that the Court can take into consideration and I certainly wouldn’t say that a man has any less privilege because he has been a good citizen.

(Inaudible)

John D. Labelle:

No I simply — my —

(Inaudible)

John D. Labelle:

I just wanted to say to the Court that it appears from this record that this man was refusing to answer because he was trying to protect third parties, and that is not a matter that the privilege can be used for.

Harold Strauch:

I think I have only a few minutes and I have several — I think I have only a few minutes and I have several points I would like to get over very rapidly.

In connection with the question that was asked as to whether or not this was criminal or a civil contempt, I would like to point out that in the Boyd versus US case, the phrase — it said that the phrase in the Fifth Amendment, “In any criminal case”, includes civil matters and I think that’s implied also in the Mapp case.

In connection, one thing I would like to emphasize as an important point of our case is that the lower court, the state court did not use the federal standards and perhaps this might help in explaining why I say that.

The lower court which heard the case before it went to Supreme Court said that the questions propounded to the petitioner do not indicate a danger to the petitioner of criminal liability, which is real and appreciable.

That is the test in the McCarthy case in Connecticut, in 110 Connecticut 482.

And our Supreme Court on page 21 I think it is of the record.

No, our Supreme Court in its decision upheld the lower court and it upheld the lower court on the basis of the McCarthy case, and the McCarthy case is predicated upon an old English case known as Regina versus Boyes, Regina versus Boyes in B. & S. 311 of 350, that the danger to the witness must be “real and appreciable”, and the Regina and Boyes test was disavowed in Emspak versus United States case in 349 U.S. 190.

So that the State Court was not applying the federal constitutional standards as set forth in the Hoffman case and the cases that follow the Hoffman which set up what the federal standards are in instances of this sort.

With respect to Malloy, I can’t help saying that insofar as his activity is concerned, the only thing that appears in the record is that it was a criminal.

There was nothing in the record to indicate that he had any legitimate enterprise of any sort, as a matter of fact there is nothing in the record about what he did except that he was convicted of crime on one occasion.

And the other point that — oh and in connection with the Hoffman case, I would also like to cite the Singleton case, which came at about that year or shortly after it.

In the Singleton case, there was no showing by either the defendant or the counsel as to what the crimes are, to which the petitioner was objecting revealing any information about.

The defendant remained quiet and the Supreme Court held he was entitled to do so, that was within his privilege.

And as to whether or not a witness should say anything at all, is a matter of judgment.

Harold Strauch:

You can take the case of Rogers versus U.S. in 340 U.S. 367 decided 1951, where a woman secretary I think of some communist group did reveal that she was the secretary and that she had certain records, and I think that was all that was necessary for the Court to hold that she had waived her immunity.

So that Malloy was faced with very a real problem, and the matter of judgment was that you don’t say anything because we don’t know when we cross the threshold, when answering questions become very dangerous.

And one other point that I would like to emphasize that I forgot in my original argument was the basis for my hope that the Mapp and the Ker cases, which applied the Fourth to the state, is a reason for us to believe that the Fifth Amendment should also be applied, is that in connection with the Boyd case, the Bram case, the Weeks case, and even the Feldman case, there was language which said, and in the Ker case, the Mapp cases, there was language which said that the Fourth and Fifth are so intertwined.

They supplement one another, that it’s utterly illogical to say that the Fourth applies and the Fifth does not apply.

So that our argument basically is twofold, one the Fifth applies to the states under the Fourteenth, and secondly that even though the State of Connecticut recognizes that fact, the State of Connecticut did not apply the constitutional standards that it was obliged to apply under the cases of this Court.