New Jersey v. Portash – Oral Argument – December 05, 1978

Media for New Jersey v. Portash

Audio Transcription for Opinion Announcement – March 20, 1979 in New Jersey v. Portash

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Warren E. Burger:

The case is submitted.

We will hear arguments next in New Jersey against Portash.

Mr. Stier, I think you may proceed when you are ready.

Edwin H. Stier:

Mr. Chief Justice and may it please the Court, The respondent in this matter was entited by a New Jersey state grand jury in two counts.

First count; for misuse of his public offices for the benefit of a private developer.

The second count; for obtaining approximately $31,000 from that developer through Conduit Corp to which he was not entitled as a public official.

After a jury trial, the respondent was convicted on count two and acquitted on count one.

Matter was appealed to the Appellate Division of the Superior Court of New Jersey, which reversed the conviction on one ground, and that was that in the course of the trial, the trial court had ruled in such a way as to deprive the respondent of his Fifth Amendment privilege thereby causing him not to testify, thereby depriving the perjury of evidence that would – it would otherwise have received.

State appealed to the New Jersey Supreme Court which denied the state’s appeal and denied a petition for certification.

The two issues which had been raised before this Court.

One is whether the Fifth Amendment privilege was properly asserted by the respondent in the trial and the second was whether the Harris case, rationale of the Harris case was properly applied to the facts of this case by the Appellate Division of the Superior Court of New Jersey.

The issues in this case arise out of a series of in-camera discussions, which took place among counsel on the court.

During the course of those in-camera discussions, a number of the issues were discussed, including the scope of cross-examination of the respondent in the event that the respondent would testify and whether the state would be permitted to use any of the respondent’s pretrial statements, which were obtained under various circumstances over an extended period of time for the purpose of cross-examination of the respondent.

At the conclusion of the in-camera discussions, respondent’s attorney announced that in reliance on what he believed to be the court’s ruling, his client was not going to testify.

Warren E. Burger:

Is the case in its present pasture, in your view, any different from what it would be, if he had not made this engrave but had taken the stand testified and been impeached on the Harris rationale?

Edwin H. Stier:

Absolutely Your Honor.

Warren E. Burger:

No difference?

Edwin H. Stier:

Oh, yeah, no, there would be a significant difference, which I am about to get to.

That difference is this.

During the course of the in-camera proceedings, the trial court on at least 14 separate occasions that I have counted in going through the record, said that he would not rule generally on whether the state could use or under what circumstances the state could use prior statements for the purpose of cross-examination.

The court indicated that he was bound by New Jersey Law which requires the rule on a question by question basis.

And because of the fact that no specific ruling was permitted on a proffer of proof by the state for cross-examination purposes, we do not know specifically what circumstances would have been raised in this case.

Thurgood Marshall:

Would these question by question be in front of the jury?

Edwin H. Stier:

No Your Honor, there was a —

Thurgood Marshall:

Is that in the in-camera discussion?

Edwin H. Stier:

Your Honor, there was a procedure that was established by the court and agreed to by the prosecution and the defense, during the course of the in-camera discussions, which were required the state in the event that the state wanted to use a pretrial statement against a respondent to ask for a sidebar conference before the question was asked in the presence of the Jury.

Thurgood Marshall:

Of each question?

Edwin H. Stier:

Each question based on a prior statement.

Thurgood Marshall:

I did not see that.

Is that in the appendix?

Edwin H. Stier:

Yes Your Honor, it is in the appendix.

It is in the appendix in several places and it was agreed to by the defense really on in the discussions.

Now, that specific procedure was established by the court so that in the event that the court decided that the questions based on prior statements could not properly be used, the import of the information would not be conveyed to the Jury.

Potter Stewart:

Mr. Stier, I am trying to think through whether this argument you are making is a question of state procedure or a federal question, are you –because I gather the state Supreme Court considered for its purposes the question was adequately raised to address the merits of it.

Edwin H. Stier:

Yes Your Honor.

Potter Stewart:

And you are saying that it is a matter of federal law, a state may not permit this issue to be raised and preserved in this way exactly.

Edwin H. Stier:

Yes Your Honor.

Our position is that as a matter of federal law, in order to receive the benefit of the Fifth Amendment protection, the respondent is required to assert the Fifth Amendment.

Our position is that in this case, he did not assert the Fifth Amendment, because he did not take the stand under the procedure that it had been established by the trail court for his protection, permit the issue to be framed in such a way that it could be resolved on a constitutional basis.

William H. Rehnquist:

What if the New Jersey courts, the Appellate Division here said, it was wrong for the trial judge to refuse to make this kind of general ruling, and refuse follow the question by question approach that you say New Jersey law requires, would we then have a federal question before us?

Edwin H. Stier:

I think it would be a more difficult federal question because of the fact that the state court’s ruling would have been based on state court procedure, but on the other hand in this case, there was no discussion of state court procedure.

This case was decided by the Appellate Division squarely on constitutional grounds.

Warren E. Burger:

Now you say, just be sure I have it clear, that in the bench conference when this subject was discussed, the judge made it clear that he would not make anticipatory rulings but would require them to submit the question at a bench conference, when and if he took the stand.

Edwin H. Stier:

That is correct Your Honor.

As a matter of fact, the trial court when the respondent’s attorney announced that his client was not going to take the stand expressed surprise at that conclusion, and indicated that the respondent had made a tactical judgment, not in reliance on his rulings with respect to the use of prior statements, but a tactical judgment not to testify and was simply using this as an excuse to surround his tactical judgment with some constitutional implications.

In the course of the in-camera discussions, the issue that was faced and resolved squarely by the court was the scope of permissible cross-examination of the defendant.

That is the defendant argued that the scope of cross-examination should be narrowed to the scope of direct examination intended to use only a very narrow area on cross-examination and asked the court to restrict the prosecution in his cross-examination only to those factual issues raised.

The prosecution objected very strongly to that and took the position that the scope of cross-examination should be as broad as all of the evidence which it had put it in its case in chief, none of which by the way have been alleged by the respondent to have resulted from tainted statements.

There is no element in this case concerning the way in which the prosecution had acquired all of the evidence which it had put it in its case in chief.

The trial court ruled then that the prosecution would be permitted to broaden its cross-examination to the scope of its evidence which it had been put it in its case in chief, its testimonial and documentary evidence and that in the event that further cross-examination were requested by the state in which any of the respondent’s prior statements would be used, the government — the prosecution then would have to approach the bench and raise the question at that time with the court.

It was after the ruling on the scope of cross-examination that the respondent indicated that he was not going to testify.

And at that point, the court expressed surprises I indicated before and indicated that in effect the respondent had made a tactical judgment.

Had he —

Potter Stewart:

What if he had never been in the immunized testimony at all and the defendant was going to take this, it was anticipated the defendant would take this stand and then the prosecutor made this motion at the close of its case or before the defendant started his case.

What is the rule in New Jersey?

There is no such restriction on cross-examination?

Edwin H. Stier:

That is correct Your Honor.

The trial court’s decision on the scope of cross-examination was based on New Jersey case law, which makes it clear that when a defendant takes the stand, he takes the stand as any other witness and subjects.

Potter Stewart:

So I take it then that the prosecutor thought that by asking a question broader than the defendant’s direct, he could perhaps confirm some of the state’s case in chief.

Edwin H. Stier:

That is correct Your Honor.

Potter Stewart:

You would ask him, whether or not a certain fact is true.

Edwin H. Stier:

That is correct Your Honor.

Potter Stewart:

That you had already put in the case.

Edwin H. Stier:

That is correct.

Potter Stewart:

And you anticipated that if he did not – that apparently the reason you wanted to ask that was that there must been something in his grand jury testimony that gave you that clue?

Edwin H. Stier:

No Your Honor, the position of the state is that the evidence that was obtained to put in, in the case in chief and the respondent never disputed that was all based on independent sources and it was that evidence, that the prosecution intended to use for purpose of cross-examination within the scope that the court permits.

Potter Stewart:

You may have obtained it from independent sources, but there might be something in the grand jury testimony that would be relevant to or confirm one or more facts in that state’s case in chief.

Edwin H. Stier:

It is conceivable that, that might have occurred.

Potter Stewart:

They would have to be or you would not want to — you would never get around and wanting to impeach him with it.

Edwin H. Stier:

Alright, I think that his evidence that was clearly outside the scope of his prior statements, which may have been outside of the scope of direct examination, which the prosecution would want to use for purposes of cross-examination.

Had the respondent testified and had the prosecutor approached the bench with a specific piece of prior statement that it intended to use for cross-examination, we would know the answer to your question Your Honor.

We would know —

Potter Stewart:

Your position must be then that the existence of this prior testimony could not possibly have or just did not exert any pressure whatsoever not to take the stand.

Edwin H. Stier:

Now, that may have been a factor, that may have been a factor.

Potter Stewart:

Or how could it have been with what in the way you just answered me?

Edwin H. Stier:

It is possible, and the defendant hypothesized situation —

Potter Stewart:

You are asking the question outside the scope of his direct, but which is relevant to your direct case and you want to confirm part of your direct case by his testimony.

Say he answers it a certain way, and then you want to impeach him with something he said in his grand jury testimony.

That has to mean then that there is something in his grand jury testimony that supports your case in chief.

Edwin H. Stier:

Oh, that is true Your Honor.

I did not mean to indicate that there was nothing in his grand jury testimony that was not relevant to the case in chief.

Potter Stewart:

Not only relevant, but it supports your case in chief.

Edwin H. Stier:

That is correct Your Honor.

Thurgood Marshall:

Oh, is not it your position that you had no way of knowing until he was asked specific questions on the stand whether you would want to use that grand jury testimony or perhaps some other independently acquired evidence to impeach him?

Edwin H. Stier:

Yes, that is precisely the state’s position.

We do not know which statements if any, the state might have intended to use, we do not know whether the state would have taken the position that it would concede the truthfulness of the prior statement or a claim that it was false, we do not know what purpose the state would offer the statement for, we do not know whether the statement would have been claimed by the state to have been outside of the scope of the grant of immunity, we do not know whether there would have been a direct contradiction between what he had said previously and what he was testifying to a trial.

Potter Stewart:

But Mr. Stier, if the view of the law that the New Jersey Supreme Court expressed, that should happen to be correct, there would not be any purpose in all these preliminary questions, would there?

In other words, if he had an absolute right not to be impeached, to be free of the impeachment with the grand jury testimony, there would not have been any need for this.

So which leads me to ask you, in order to raise the question of law that you ultimately are going to get to, why do we have to decide and why do we have to bother with this because they did adequately preserve that issue, did not they?

Edwin H. Stier:

I do not believe that is the case Your Honor.

Edwin H. Stier:

There even if the law is as the New Jersey Appellate Division applied, there are still possible circumstances that could have occurred at the trial which was fallen clearly outside of the Hockenberry case, which is the case on which the Appellate Division relied.

For example, if the particular piece of statement that the prosecution intended to offer could have been demonstrated to be false or could have been demonstrated to have fallen outside of the scope of the grant of immunity, then it would have fallen outside of the Hockenberry case and outside of the law as the Appellate Division applied it.

We do not know that because we do not know specifically what purpose the state might have offered it for or what the circumstances would be surrounding in the obtaining of —

Potter Stewart:

No, but the other side of the coin is that if he had been told by the trial judge that, well, I know the Appellate Division views the grand jury testimony is not useable, he would have decided to get on the witness stand, he would have needed all that, if we can take the Appellate, what they represent to us anyway.

Edwin H. Stier:

If his representations are correct, then he might have gotten on the stand to testify, had the ruling been as broad as the Appellate Division conceived, however he still might have been faced, even under Martin Berry —

Potter Stewart:

Of course, it is really different.

Supposing we had not granted certiorari in this case, but waited for the next case and there is a second trial under this being a law of New Jersey, would you still say as a matter of New Jersey Law, you have to get through all that procedure?

Edwin H. Stier:

Yes Your Honor.

Potter Stewart:

You would?

Edwin H. Stier:

Yes because there are situations in which I would argue, we are not bound by the Hockenberry decision, we are not bound by its scope.

I think it is important for me to take a moment to discuss the circumstances under which the statements were obtained from the respondent.

Respondent provided information on basically three occasions, twice in the state grand jury and once in a statement under oath outside of the grand jury several months later.

During the first appearance in the grand jury, the purpose for his testimony was simply to identify certain records which we are not covered by the Fifth Amendment.

There had been a hearing by the trial court prior to his first appearance and he was ordered to produce certain records before the grand jury and to simply identify what those record were.

He appeared shortly after that time in the state grand jury, under the protection of the state’s public official immunity law, which is a self-executing was at that time, a self-executing use plus derivative use immunity statue which covered public officials’ testifying about conduct in their public offices.

Several months later, as the result of a series of discussions between counsel representing the respondent at that time and the prosecution, a statement was taken from the respondent under oath outside of the grand jury for the purpose of defining the testimony that was required for a case in which it was contemplated that the respondent would ultimately be a witness.

It was a related case, it was an indictment that was about to be returned concerning the individuals who operated the development company and the Conduit Corporation through which the respondent had received the approximately $ 31,000.

Ultimately that indictment was returned.

It is interesting and I think instructive to look at the change of position, which the respondent has taken between the beginning of the trial and this point.

His original argument prior to going the trial was that the indictment should be dismissed because he in effect had made a deal with the state in return for his cooperation.

He believed that the state had entered into a contract which should have barred the state from retuning an indictment.

Although it is clear from the record that his cooperation, his testimony in the grand jury was the result of a desire to strike a bargain with the state.

The trial court at that time found that no such contract had been entered into and held that the indictment should not be dismissed.

But it is clear that in his case, we are not dealing with a defendant who has been brought into a grand jury asserting his Fifth Amendment privilege and refusing to testify, there is more of a willingness demonstrated on the part of this respondent to supply information, although he asked for and received immunity protection, but a willingness to disclose that information because that disclosure was to be in his best interests in disposing ultimately of the criminal charges that faced —

Potter Stewart:

But nevertheless on that when he was opinioned in November 14th 1974, the immunity was certainly made express, was not that correct?

Edwin H. Stier:

Yes Your Honor, there is no question about that.

Potter Stewart:

And he was asked if he understood that I think?

Edwin H. Stier:

Yes Your Honor.

Potter Stewart:

And so there is no clarificaion on what the limits of the immunity were or what the extend of it was I guess?

Edwin H. Stier:

No, there is not.

Potter Stewart:

Well, I take it you are going to get to –

Edwin H. Stier:

I am about to.

Potter Stewart:

Why you have not exceeded the limits of your promise?

Edwin H. Stier:

I am about to. The Appellate Division of the Superior Court has relied on what is probably the leading authority in the circuits on this question that is US versus Hockenberry, 474 F.2d.

There had been only very few cases decided on this question.

Hockenberry has been relied on in each of those cases.

Hockenberry, the state contends, is wrong in one respect and certainly distinguishable in another significant respect.

I realize that the Hockenberry case has only limited presidential value here, but I think that the distinction between the facts of the Hockenberry case and this case are extremely important, and I want to take one moment to address that.

In the Hockenberry case, the defendant had been subpoenant to a grand jury and had testified truthfully about having perjured himself previously and testified forcedly in another respect unrelated to the first.

He was entited for the perjury at his trial when he testified, the prosecution used his truthful testimony indicating that he had previously committed perjury for the purpose of impeaching his credibility.

Clearly the purpose was not to demonstrate a conflict between his trial testimony and his grand jury testimony, the purpose was to permit the jury to infer from the truth of what he had said in the grand jury, having admitted committing perjury previously, to infer from the truth of what he said that he was an habitual liar, that is not the situation here.

No matter how you construe the decision made by the trial court in this case, it was clearly not so broad as to permit the jury to infer from the truth of what would have been offered from his prior statements, any facts, but simply to demonstrate that there was an inconsistency between what he had said previously under oath and what he was saying now.

Most importantly though, I think that the Hockenberry case and the Appellate Division of this case misconstrued the import of the Harris case.

It had to distinguish Harris versus New York in order to get around the implications of that case.

The Harris case of course dealt with a Miranda situation; a statement obtained in violation of the Miranda rules.

In the Appellate Division and in Hockenberry, the court described a Miranda confession as a voluntary confession and said that since this was an immunity situation, the statement was taken involuntarily.

I dispute that characterization of Miranda.

The Miranda case clearly deals with statements which are compelled that you are involuntarily obtained.

Potter Stewart:

Well, did you read Michigan against Tucker?

Edwin H. Stier:

Pardon.

Potter Stewart:

Have you read the opinion of this Court in Michigan against Tucker?

Edwin H. Stier:

I am sorry, I —

Potter Stewart:

That is the one thought in that opinion if I have the, I think I have the indictment.

The Court saying specifically that violation of the Miranda rules interrogation does not mean that the response to the interrogation was involuntary.

Edwin H. Stier:

Your Honor, I think that the term voluntariness has been used in different contexts, it is used different to mean different terms.

Potter Stewart:

Right, and was not it pretty clear in the Harris case itself that the statement was not an involuntary statement, but one on the — but the statement simply taken in violation of the Miranda, so called Miranda rules?

Edwin H. Stier:

I think that a statement taken in an immunity situation is no more involuntary, the statement taken in violation of Miranda.

Potter Stewart:

witness is guilty of contempt if he does not answer.

Edwin H. Stier:

Pardon, I am sorry.

Potter Stewart:

The witness is guilty of contempt if he does not answer, is not he?

Edwin H. Stier:

That is correct.

Potter Stewart:

Oh, that is generally being considered involuntary then.

Edwin H. Stier:

And the court in Miranda described the coercive atmosphere of the police station as one in which the responses were compelled and described the statement taken under those circumstances as an involuntary statement and indeed compared the compulsion of the police station to the compulsion of a court proceeding.

William H. Rehnquist:

Well, just two years ago in Oregon v. Mathiason, we held that testimony given in a police station by someone who is not under arrest did not violate Miranda.

Edwin H. Stier:

That is correct, and I —

William H. Rehnquist:

Well, how does that — how can that be reconciled with the statement you just made?

Edwin H. Stier:

When the compelling atmosphere is created in the police station, which forces the individual in those circumstances to give up his inclination to remain silent, that is the threshold which I believe is reached in a grand jury when immunity is granted and when court compulsion, legal compulsion is exhorted to force the witness to testify.

Certainly under the facts of this case, I believe there would be a less compulsion under the facts of this case than in circumstances where — some circumstances in the back room of a police station where the compelling atmosphere can be very coercive.

William H. Rehnquist:

Oh, you are telling about rubber hoses?

Edwin H. Stier:

No Your Honor, that raises a different question.

Those are the due process cases which I think can be distinguished.

That is the other context in which involuntary is used where the conduct of the police itself is pulled into question, where the policy is different.

The policy there is to deter unlawfulness in the obtaining of a confession.

That element is not present in a grand jury.

I think that the due process cases can be distinguished from the Miranda cases and that the immunity is more closely analogous to the Miranda type situation.

The compulsion in the back room of a police station where it is my contention, defendant should receive no less protection than a witness sitting in a grad jury.

I am not here to urge a ruling by this Court, which would permit a prosecutor to depose a potential defendant; that is not the case here.

In Oregon versus Hass, the court when faced with a question of potential abuse said, we will deal with that problem when the facts of the case indicate an abuse.

I believe it can and could be dealt with under the due process clause, but the due process clause does not apply here, this is strictly a Fifth Amendment case.

Potter Stewart:

Mr. Stier, I notice that the opinion of the Appellate Division refers to the privilege as a constitutional protection afforded by the Fifth Amendment and to cognate state constitutional guarantees.

We do not have any constitutional guarantee, do we?

Edwin H. Stier:

That is right, no, there are no state constitutional guarantees.

Potter Stewart:

It is statutory entirely, is not it?

Edwin H. Stier:

There is a rule of evidence which creates a privilege against the —

Potter Stewart:

Yes, but I mean it is not — we do not have any privilege in the state constitution.

Edwin H. Stier:

That is correct, there is no —

Potter Stewart:

It is only statutory.

Edwin H. Stier:

That is correct.

Potter Stewart:

But what of your respondent, I know your time is running, your respondent argues that really this Appalled Division opinion is simply a matter of construction of the state statues, the immunity statute and the privilege statute and therefore that the — even though it draws on federal cases to inform or like interpretation of those two statues.

The whole decision rest on the state statutes and therefore on adequate state ground and therefore there is nothing here for us to decide.

Edwin H. Stier:

I do not think that, that is what the Appellate Division said Your Honor, I think the Appellate Division rested its holding squarely on the Fifth Amendment, squarely on the Hockenberry case in defining the permissible limits of the —

Potter Stewart:

Well, I gather your adversary’s argument is sure, Appellate Division did all of that, but only to inform the content of the state statutes, and what all we have here is an interpretation of the state statutes.

Edwin H. Stier:

Well, Your Honor, I think that had the Hockenberry case gone the other way, I think that the state statue would have been construed the other way by the Appellate Division that seems to be clearly what the Appellate division is saying in its opinion that it is bound by the scope of permissible use of immunized testimony as defined by the Hockenberry case, it relies strictly on the Fifth Amendment.

Why as a matter of construction of the state statutes, does that make a difference?

Edwin H. Stier:

I do not believe that they are construing the state statute because the state statute has been held in a number of New Jersey cases to be as broad as the federal constitution permits.

Which I guess, I wrote when I was on the New Jersey Supreme Court and I thought we made quite a point that the state statute was informed primarily not by constitutional interpretations but by common law interpretation of the privilege, is not that case still a law?

Edwin H. Stier:

That case was — that was decided before this statute was enacted in response to this Court’s holdings in the cases which applied the Fifth Amendment to the states and which have restricted the state in using —

Is the current statute very different from the one dealt within (Inaudible)?

Edwin H. Stier:

Yes it is Your Honor.

I believe that it is different in the sense that it was drawn specifically from this Court’s holdings, which were decided subsequently.

But it is still a statute?

Edwin H. Stier:

Yes Your Honor, it is still is a statute.

Potter Stewart:

Mr. Stier, suppose in granting the immunity, the state had said that we will not use anything you say here except in perjury false swearing or whatever the language was, and we just want to know, we will not use it in for impeachment or for cross-examination in any subsequent criminal trial of you, and suppose then the state want to do what – what it wants to do, what it wanted to do here, would that violate the Fifth Amendment of the constitution of United States?

Edwin H. Stier:

No, I believe that it might violate the due process clause of the Fourteenth Amendment, but I think you would still had the same issue of what the scope of protection of the Fifth Amendment is going to be.

Potter Stewart:

Thanks a lot.

Warren E. Burger:

Your time is up for that.

I am going to try to clarify one thing.

Had this man taken the stand and the prosecutor in impeachment confronted him with his grand jury statements that was given under the grant of immunity and no other impeachment, what would have been the Court’s ruling in your view if you care to speculate about that?

Edwin H. Stier:

If he then confronted strictly with the —

Warren E. Burger:

Just what he said in the grand jury under the immunity grant, not some of the things he said at some other time under oath.

Edwin H. Stier:

My argument would still be the same that the use of his grand jury testimony taken under a grant of immunity for that limited purpose, not to infer the truthfulness of what he said in the grand jury but simply to show the conflict between two statements under oath would have been permissible under the rationale of Harris and not precluded by the scope of protection afforded by the Fifth Amendment.

Warren E. Burger:

I take it from some of the other things you said that the prosecution happened to use to impeach him that was not included in the grand jury testimony.

Edwin H. Stier:

Absolutely, I think the record is clear on that and indicates a substantial amount of information, which it intended to use, which fell outside of the scope of his grand jury statements or any other statements that he gave.

Warren E. Burger:

And you say that neither the prosecution nor the court has any obligation to the defendant to tell him advance how the ruling is, what the prosecution is going to do and how the court is going to rule until and unless he takes the stand and he is confronted with it?

Edwin H. Stier:

That is correct.

I believe that a procedure that was established by the trial court to keep this information away from the jury was clear and is all that the defendant was entitled to.

Warren E. Burger:

Very well.

Edwin H. Stier:

Thank you.

Warren E. Burger:

Mr. Wilbert?

Michael E. Wilbert:

Thank you Mr. Chief Justice, may it please the Court.

Michael E. Wilbert:

The facts of this case are that the respondent did go before the grand jury after advising the prosecutor that he wished to have his Fifth Amendment rights protected.

It was only at that time after insisting on his Fifth Amendment protection and privilege that he was offered the grant of immunity under the New Jersey Public Employees Immunity Statute.

So the willingness was compelled, it was not him coming forward in volunteering and saying, oh, by the way do I also have immunity.

He refused to testify, sought and obtained immunity from the court and the language of the immunity grand is explicit as said out in our brief.

Mr. Luciani (ph) also advising him that you know that what we obtain here today will not be used against you personally in any subsequent criminal proceeding.

There after and as a direct result of the immunity that he obtained.

He gave grand jury testimony and he also gave other statements to the prosecutor.

I submit that all of that testimony that he gave and all of those statements are obtained by the state as a direct result of his immunized grand jury testimony and therefore under Kastigar, clearly are precluded from use as are the grand jury statements.

Warren E. Burger:

But do you mean that the prosecutor could not impeach or undertake to impeach by use of the statements other than those in the grand jury, if he had independent contradictory statements?

Michael E. Wilbert:

If he had independent, I submit Mr. Chief Justice that he could but he had no independent statements.

Warren E. Burger:

You say they are all dependent on the grants of immunity?

Michael E. Wilbert:

Yes, there was no speaking to the respondent in this case until after he obtained the immunity.

It was only at that time that he was willing to speak to them, and —

Warren E. Burger:

Does the grant of immunity relate only to the testimony given in the grand jury?

Michael E. Wilbert:

I submit that it does not Mr. Justice.

Warren E. Burger:

Is it a New Jersey Law on that it is different from all the other 49 states and the Federal?

Michael E. Wilbert:

Mr. Chief Justice, I submit that under Kastigar, any evidence that flows directly from the immunized grand jury testimony is immunized to the same extend as the immunized testimony itself, and I think that under Kastigar in New Jersey at least I think in all the states, an independent —

Warren E. Burger:

What if he happened to be presides among besides the other things he did, suppose he happened to be an alcoholic and went to Alcoholic Synonymous and got up and made a lot of these statements.

Now, could he be impeached on the basis of that or would you say that, that was also —

Michael E. Wilbert:

If it were the prosecutors who caused him to be intoxicated and took him to the Alcoholic Synonymous meeting, I think that there is no question.

Warren E. Burger:

Where there are actually some facts now, usually people are intoxicated today at meeting, so I am told you know, he is there not intoxicated or anywhere else, The Chamber of Commerce, wherever you want him to be and he makes these statements, you mean that all those statements are protected by the grant of immunity from the grand jury?

Michael E. Wilbert:

No, I think the state could make an argument and possibly make a showing that it was independent and if they carried their burden in a Kastigar hearing that it was independently obtained, not through the grand jury testimony of the defendant, then they could use that, they can use that in the state of New Jersey in any event.

However, the situation here was that after they took his grand jury testimony, they then called him back in on February 5th, 1975 as the date is quoted, called him back in and took another statement under oath from him on the basis of the testimony that they obtained from him in the prior grand jury proceedings.

They had none of this information but they examined him on prior that time.

Warren E. Burger:

Supposing they answer these questions in the – to the —

Michael E. Wilbert:

What compelled him was that, he felt that he had the same immunity that flowed from the prior grand jury testimony that he gave.

He was advised that he would not be indicted if he gave grand jury testimony and then he did give the grand jury testimony and he gave the subsequent statement that they called for, they called him into Freehold, New Jersey, Courthouse and with a court reporter and asked him to sit down and under oath give them further information that they did not have.

Warren E. Burger:

You say that was compelled?

Michael E. Wilbert:

I submit that is compelled just as though he would still in the grand jury.

Warren E. Burger:

What if he refused to come there, was there any process or any contempt part that would force him to come?

Michael E. Wilbert:

I think the state would have immediately called him before the grand jury and said, you have already given testimony under immunity, you now required to continue that testimony.

They called him back twice to the grand jury.

I do not think there would be any limitation on the number of times they call him them back.

Warren E. Burger:

You are so telling us that when he went to the prosecutor’s office in response to an invitation and answered questions under oath that he was compelled to do that by something?

Michael E. Wilbert:

I submit he was without question Mr. Chief Justice.

After he had given testimony under oath, he had given testimony in November and then in February was called back to give further testimony, as a result of the evidence that they obtained from his grand jury testimony.

It flows directly under Kastigar.

I submit there is no question of — in my mind, I would submit that it can not be a question as to it direct consequence of the immunized grand jury testimony.

The defendant then — the respondent then had telephone calls with the prosecutor, when they called him and other information was obtained, some other information was obtained.

He then was indicted and he went to trial.

At the end of the state’s case, pardon me, prior to trial, there was a hearing wherein judge, the trail judge ruled that statements given under the grant of immunity could be used to impeach the respondent, if he was materially inconsistent in his trail testimony.

The argument made by the attorney general that court never made a rule, it think it is fallacious.

At page 151, he makes a ruling in the appendix, at page 204, he make a ruling.

He makes all of these preliminary rulings under what he conceive to be the fact situation that Harris applied and he made the ruling that if the defendant took the stand in his own defense, he could be impeached by immunized testimony for inconsistencies.

William H. Rehnquist:

Do not you have to argue here that kind of a dry run of that sort is a federal constitutional right that attaches along with the Miranda rights?

Michael E. Wilbert:

I do not believe that I do Mr. Justice Rehnquist because I believe that the state found that the court had made the ruling.

The state of New Jersey found that the court had ruled that the testimony could be used to impeach that, that ruling was improper and that the state statute required that no use be made of the immunized testimony with the exception of perjury and false swearing, they are exceptions that are built into the statute and which are still viable to the state in the event he testifies the subsequent trial without the use of impeachment.

He can be charged and indicted and tried for perjury.

William H. Rehnquist:

But what if the state court had simply said, we are not going have any in limine motions in this case, if you want to test my ruling, you get on the stand and start answering questions?

Michael E. Wilbert:

I think that, that may have been a situation that violated Brooks versus Tennessee.

Your Court’s ruling in Brooks versus Tennessee was that the defendant who was required to take the stand first in his own defense or not at all was placing the position when he did not take the stand that his Fifth Amendment privilege was violated, not that he took the stand.

William H. Rehnquist:

Then you do have to say that a defendant in make it before he make his choice as to whether take the stand or not, is entitled as a matter of federal constitutional law to obtain from the judge some sort of ruling as to whether particular objections made to particular question will be sustained or not?

Michael E. Wilbert:

I do not submit that I do in this particular case, because I believe that the Appellate Division ruling on a substantive state legislative enactment determine that no use could be made of the testimony in the manner attempted by the prosecutor and that therefore the — and the court had ruled that it could be used and therefore the court had ruled erroneously and had violated the statute.

I submit that we can be on completely adequate independent state grounds in this case.

William H. Rehnquist:

Why did the Appellate Division spent so much time on Harris against New York?

Michael E. Wilbert:

I think that they were drawing the distinction that Your Honor is obtained in Mincey versus Arizona just this past term in June that we are talking about compulsion when we are talking about obtaining testimony under immunity and in talking about compulsion, we are not in a Harris situation.

The Judge Garth in US versus Romento (ph) as I have outlined, draws the distinction between Harris and limits and indicates how the court has limited Harris to situations where no compulsion, where there was no involuntariness.

Subsequent to that time, the court has found in Mincey versus Arizona that one of the question is compelled.

William J. Brennan, Jr.:

You have mentioned that you thought the Court of the Appellate Division rested this on questions of the construction and scope of the what, both the immunity statute and the privilege statute?

Michael E. Wilbert:

The immunity statute — Mr. Justice Brennan, it is the privilege statute.

Michael E. Wilbert:

It was strictly a public employee immunity statute that they had under determination here 2A:81, 2:17.

William J. Brennan, Jr.:

Oh, is not there are separate (Voice Overlap)?

Michael E. Wilbert:

No, Mr. Justice Brennan.

William J. Brennan, Jr.:

I see.

Michael E. Wilbert:

Not in New Jersey, there is one, there is a Public Employee Immunity Statute that they relied upon and they were dressing himself that issue because this man was a Mayor and freehold director at that time.

William J. Brennan, Jr.:

Oh, then your argument is that this whole case involves only a construction of 17.2A2, is that it?

Michael E. Wilbert:

Yes.

William J. Brennan, Jr.:

That is the immunity statute.

Michael E. Wilbert:

That is the immunity statute for public employees, which he fit that category at that particular time.

William J. Brennan, Jr.:

How do you answer my brother Rehnquist’s question, why so much attention to federal cases in the Appellate Division?

Michael E. Wilbert:

I think they were drawing an analogy and construction of their statute and they were utilizing the law that they had available to them.

Hockenberry was available at that time and Hockenberry drew the distinction in Harris.

The trial court —

William J. Brennan, Jr.:

Hockenberry was a federal constitution?

Michael E. Wilbert:

It was Mr. Justice Brennan.

Byron R. White:

Say in an ordinary criminal case, the state purports to call the defendant to the stand on their side of the case, they just want to cross-examine the defendant.

Is not there some New Jersey law of some kind, forgetting federal law, is not there a New Jersey — is not there at least a statutory provision that would prevent a state from doing that?

Michael E. Wilbert:

Yes Mr. Justice White.

What is relied upon by the Supreme Court in New Jersey is the common law of and I believe it is called the general clause of (Voice Overlap) of the constitution.

Byron R. White:

So there is no general — there no New Jersey statute that generally grants the privilege not to testify against yourself?

Michael E. Wilbert:

No, there is not a statutory act, but there is the general proceedings of the constitution.

William J. Brennan, Jr.:

What happen to the statute that we dealt within Tillo (ph)?

Michael E. Wilbert:

I am not familiar with that.

William J. Brennan, Jr.:

I thought the attorney general said, that has been succeeded by another statute that independently of this immunity statute.

Michael E. Wilbert:

That may have been a witness immunity statute to general witness immunity statute under 2A:173 in New Jersey.

William J. Brennan, Jr.:

Well, I am talking about the – it is 25 years ago since I wrote that opinion but what we dealt with was a statutory provision, which declared a privilege against self incrimination, a general privilege.

Potter Stewart:

And what he did in immunity statute if there is no privilege not to testify?

Michael E. Wilbert:

There is a privilege not to testify but it is found from the New Jersey constitution of the general provision under 18 according to the New Jersey Supreme Court.

Now, it is —

William J. Brennan, Jr.:

That is that the privilege is now constitutional in New Jersey?

Michael E. Wilbert:

Yes, it is constitutional under the general provisions of the constitution, there is no specific —

William J. Brennan, Jr.:

Well, now general provision –

Warren E. Burger:

Can you read it to us?

Potter Stewart:

I can not Mr. Cheif Justice, because it does not speak about —

William J. Brennan, Jr.:

Is the constitution any different now than it was when I sat on the New Jersey Supreme Court 25 years ago?

Michael E. Wilbert:

Mr. Justice Brennan, it is still a 1947 constitution.

William J. Brennan, Jr.:

Well, then there was no privilege in that constitution that is why we have to deal with a statutory provision.

Michael E. Wilbert:

There was no privilege specifically stated in that.

It is now been interpreted to be as part of the general language of the constitution under 1A.

Yes, Mr. Justice Pashman’s dissent in Miller —

William J. Brennan, Jr.:

I am not interested in the dissent, is there an opinion of the New Jersey Supreme Court that now reads a privilege into the New Jersey constitution?

Michael E. Wilbert:

The point was not in the majority.

William J. Brennan, Jr.:

But it is there?

Michael E. Wilbert:

There is not a majority case that I know of but the dissent was not dissented to on that basis.

He states it and I believe that is what is found.

William J. Brennan, Jr.:

Yes, I know Mr. Justice Pashman has been better at the center I know but it does not follow that does it that his colleagues have agreed with him?

Michael E. Wilbert:

I do not know that we need to reach that aspect of it because we did have a valid Public Employees Immunity Statute that was not self executing in this case.

He asked for the immunity, he obtained the immunity.

It is now not self executing, excuse me, it was self executing then but he sought and obtained immunity under that statute.

The construction of the statute by the Appellate Division was that the court had ruled and in ruling had violated that statute and that a retrial – a remand for a retrial should be had.

The state in its brief totally misconstrues the state Appellate Division rule.

The ruling was not that the testimony could not be use the subsequent perjury charge.

The ruling as a matter of fact, states at page 207 of that opinion that is not here pertinent, because there was no allegation of perjury, but I am quite certain there was extensive oral argument.

I have attended oral argument on this new Appellate Division.

Could we say that you could not use it even for a perjury charge, no one was conceded that at a subsequent trial for perjury, the testimony could be used because that —

Potter Stewart:

Your original motion that if you took, that if your client took the stand that the cross-examination be limited to the subject matter of his own statements.

Michael E. Wilbert:

My first request was that the Court because I was alluded to this by the prosecutor raising it initially that they were going to use the immunized testimony to impeach, I asked that the court rule that they could not use the immunized testimony to impeach.

Potter Stewart:

That is not what I asked you.

I ask that the cross-examination be limited to the scope of the direct testimony of your client if you took the stand?

Michael E. Wilbert:

I did not actually articulate that, what I was attempting to do was say that the immunity statute could not be used to impeach.

Michael E. Wilbert:

What it was construed to be that I was trying to limit this direct — the scope of direct and also then limit the scope of cross; I did not attempt to do that.

The Court pointed out that the — and I submit that the United States has the same situation under Raffel and under the numerous cases, the Johnson case, that once you take the stand —

Potter Stewart:

I think then your position is that if you had, if nothing like this had come up in advance and your client had taken the stand and he testified to a fact, made an assertion, your position would be that the state could not then resort to the grand jury testimony in an attempt to impeach that statement?

Michael E. Wilbert:

Absolutely, and I —

Warren E. Burger:

But you will also go beyond that and say that the — not only is the grand jury testimony immunized but everything you said after that, so that everything is immunized.

Michael E. Wilbert:

Everything is flows directly from that grand jury testimony is as immunized under Kastigar.

I think to have the Fifth Amendment privilege co-extensive as Kastigar indicates it must be, as Mr. Justice Powell indicated in his decision, there can be no use made of that immunized testimony.

Warren E. Burger:

(Voice Overlap) the statements made long after, substantially after the grand jury, was it?

Michael E. Wilbert:

The test I do not believe is the distance between –

Warren E. Burger:

Now was it or was not it?

Michael E. Wilbert:

Pardon me Mr. Chief Justice.

Warren E. Burger:

Would Kastigar deal with testimony given outside the grand jury room, after the grand jury hearing?

Michael E. Wilbert:

I do not believe it did, but Kastigar rule that any evidence that flow directly or indirectly from that grand jury testimony was immunized.

William H. Rehnquist:

What about the testimony that had been given before the grand jury testimony, statements made in outside a court context?

Michael E. Wilbert:

At the grand jury or prior?

William H. Rehnquist:

Prior.

Michael E. Wilbert:

Before the grand jury meaning prior to it, I would say that, that testimony is not immunized and it could be used.

William H. Rehnquist:

It could be used by the state?

Michael E. Wilbert:

Yes and as a matter of fact, the state did use the testimony of a witness in Constance called Pinsky (ph) whose testimony they had obtained prior to, they had obtained it after the respondent took the stand under immunity, but they had the information that he was going to testify to beforehand.

William H. Rehnquist:

How about the statement of the defendant made prior to the grand jury?

Michael E. Wilbert:

There was no statement of this respondent.

William H. Rehnquist:

Well, but what if there had been?

Michael E. Wilbert:

If there had been, I believe that it would not be immunized because he has to seek immunity and obtain the immunity for his Fifth Amendment rights to flow.

If he goes and testifies of his own will, I think that there is no Fifth Amendment privilege there.

I think the court has found that.

William H. Rehnquist:

And the mere fact that he has made statements before ever going before a grand jury, then goes before a grand jury and claims immunity does not mean that the statements he made prior to going before the grand jury can not be used against him if he chooses to take the stand.

Warren E. Burger:

The statements that he gives before the grand jury under immunity, I would submit, can not be, because they are compelled.

William H. Rehnquist:

Yeah, but the statements made before, I mean before in time, prior in time?

Warren E. Burger:

I do not recall the case but it may be US versus Knox, it says that statements made by a gambler on his income tax prior to any request for immunity could be utilized against him, I believe that, that is the case.

I know that, that is the rule of law that Your Honors have imposed; I do not recall a particular case.

Warren E. Burger:

I submit there was absolutely no waiver in this case, so his right to testify.

He was faced with the choice of paying the price, either testify and be a subject to the improper use of the grand jury testimony, the immunized grand jury testimony, or do not take the stand at all.

I think Brooks versus Tennessee is navigates on that point and I think Mr. Justice Marshall’s opinion in Wardius versus Oregon is the same, he had a right to rely on the statute.

We will resume there at 1’o Clock counsel.

You may resume counsel.

Michael E. Wilbert:

Thank you Mr. Chief Justice.

The policy that the petitioner urges in this case will in effect lead to a civil deposition discover procedure, not withstanding his oral argument, because the prosecutor then will in his discussion be able to gather the facts of his case.

And after having gathered the facts of his case, will be able to place a defendant in a situation where he has to obtain immunity.

Warren E. Burger:

I am not sure I follow you.

Your client didn’t, when their prosecutor invited him down for a little tête-à-tête, he did not have to go, did he?

Michael E. Wilbert:

He did, under the Public Employees Immunity Statute.

If he did not go, he was subject to the penalties of forfeiture of public office and possible incarceration for his contempt and —

Warren E. Burger:

For contempt of whom?

Comtempt of the prosecutor?

Michael E. Wilbert:

For contempt of the Court because —

Warren E. Burger:

Was there any court order directing him to go to the prosecutor?

Michael E. Wilbert:

Yes, there was Mr. Chief Justice.

In New Jersey, the procedure is that he was taken before Judge Schack in Trenton and was advised that he – they sought his testimony of the Public Employees Immunity Statute and it was obtained through that court order.

Warren E. Burger:

Speaking now of he is going to the grand jury or going to the prosecutor?

Michael E. Wilbert:

Going to the grand jury.

Warren E. Burger:

Well, I was talking about the prosecutor.

Michael E. Wilbert:

He made no statement whatsoever.

Warren E. Burger:

Was there an order compelling him to go to the prosecutor?

Michael E. Wilbert:

Only the previous order of the court that he had to give testimony and that he had immunity from the testimony that he gave that was still in effect.

Warren E. Burger:

And he gave the testimony at the grand jury, did not he?

Michael E. Wilbert:

He did.

Warren E. Burger:

Was there any force in that order, after he had given the testimony to the grand jury, which compelled him to go and talk to the prosecutor?

Michael E. Wilbert:

I submit that it was a continuing order.

It would have been no problem whatsoever for the prosecutor if he refused in February to go back and say he is now not cooperating with us and not giving us further testimony, so that the civil deposition procedure could be used.

In the prosecutor’s discretion after he gains the facts of his case and place the defendant in a position of immunity and then compelled him to testify to use that testimony to impeach his creditability.

Byron R. White:

But your position, your constitutional position is made solely on the privilege against compelled self incrimination?

Michael E. Wilbert:

It is the constitutional —

Byron R. White:

So far as it rests on the constitutional claim that is – it is just Fifth Amendment, the Fifth and Fourth Amendments?

Michael E. Wilbert:

Well, I believe that also there is a due process are again to be made because —

Byron R. White:

Did you ever make that to anybody?

Michael E. Wilbert:

I was under the impression that it was subsumed.

Once the testimony was found to be compelled that there was no question and there was a due process argument.

I am referring to Mincey versus Arizona, where the question is if it is compelled testimony, it violates due process to use it in any regard against the defendant, whether to impeach his creditability or not in the trial, carving out the exception that the Public Employees Immunity Statute has carved out, that it can be used in a subsequent perjury charge but I submit that it is a due process question also under the Fifth Amendment.

Byron R. White:

But there is no due process, was there a due process argument submitted to the New Jersey court?

Michael E. Wilbert:

There was not a due process argument submitted to the New Jersey Court, no Justice White.

The mischief that the prosecutor attempts to impose upon the court though with regard to the Fifth Amendment will serve no constructive purpose to prosecutors in general, because the defendant with the choice of either having the immunity granted, knowing it can be used to impeach his creditability if Your Honor so find, I submit in many instances will opt the ladder and will not testify preserving his rights at trial to take the stand free from the use of impeached testimony.

And as Mr. Justice White said in Murphy versus Waterfront Commission, for a 100 years immunity statutes have been used to fared out crime that is otherwise impractical of discovery, conspiracy and various forms of racketeering.

Byron R. White:

Suppose the New Jersey statute though had immunity statute, the Public Employees Immunity Statute had promised the defendant not to use the compelled statements or the statements that his testimony, in circumstances in which the — against which the Fifth Amendment, Fifth and Fourteenth Amendments did not protect the defendant, suppose that New Jersey had gone farther than it was constitutionally required to do and then at trial it purported to violate its agreement or its promise, would that be a federal constitutional issue then?

Michael E. Wilbert:

I think that would be strictly straight interpretation of a state statute.

Byron R. White:

Would that be a federal constitutional issue?

Michael E. Wilbert:

I submit it would not.

I do not think that the state of New Jersey — I do not think there is a federal question, if we merely limit this to the construction of a state statute.

The state has the right to interpret its statute under substantive interpretation of its own legislation.

There was by the way Mr. Justice White an oral agreement made in this case Mr. Luciani (ph) indicating that, you understand Mr. respondent that none of this testimony will be used against you personally.

It was implied —

Byron R. White:

But it was no different from the statue?

Michael E. Wilbert:

It was no different from the statue.

Byron R. White:

It is almost in the terms of the statue.

Michael E. Wilbert:

Except for the use the word personally, but it did comply with the Public Employees Immunity Statue, that no use to be made.

I do not think there is any question that the testimony was compelled in this case under the grant of immunity and once compelled that cannot be used for any purpose and except for the perjury recharge, a subsequent perjury recharge, that is all that we are asking that compelled testimony not be used to impeach its credibility.

Warren E. Burger:

Could he be entited under New Jersey now for perjury?

Michael E. Wilbert:

Yes he could.

The Appellate Division made that clear in oral argument that they were reserving the right to – and under the statute, it is clear.

The statute says could not be used in any subsequent trial against the defendant with the exception of perjury or false swearing.

At the time of this statute, it was merely perjury, but they have changed the statute to make it non-self executing and include false swearing.

Byron R. White:

But your position as I take it on perjury is that, if he had taken the stand that the trial and testify and he was either convicted or acquitted as would be the case, his statements at the grand jury hearing, his previous statements could not be used to convict of the perjury at the trial.

Michael E. Wilbert:

I submit — the Appellate Division found that they could be used in carving out those exceptions —

Byron R. White:

Your position is that grand jury statements could not be used to convict him of perjury in his testimony at the trial.

Michael E. Wilbert:

That is not my contention; I submit that he is exposed to a charge of perjury, if he testifies and testifies untruthfully at trial the, statute prohibits the charge of perjury and allows the statement made at the grand jury to belay side by side with his testimonial trial.

Byron R. White:

I thought your position was that the only perjury that he could be convicted would be perjury at the grand jury stage.

Michael E. Wilbert:

That was not my position Mr. Justice White.

I believe that the statute is brought enough New Jersey under the statutory interpretation to charge him with perjury in a subsequent trial and to utilize the statements that he gave against him to show the perjury to a jury.

That is really the problem we have here.

It does not amount to perjury, his testimony —

Byron R. White:

I am sorry I just do not understand why you think it is even that it is any more of violation of the statute to use his grand jury testimony at the trial to show that he is lined, if a day later in a perjury prosecution related to what he testified to a trial, you could introduce his prior grand jury testimony.

Michael E. Wilbert:

That is the real problem in this case because there was no contention that he had perjured himself at the grand jury.

He was conceded that his testimony was trustworthy and truthful.

And I submit the use of the testimony at the trial was not going to go to perjury but was merely going to go to the vagaries of memory between the time elapsed and other inconsistencies that might in the jury’s mind indicate that this man was being less than credible without even reaching the question of perjury they were attempting to use it and that is the real problem that we have in the case.

They were violating his rights to take the stand to use to impeach without even, I contend, hoping to obtain perjury.

I have no other points unless there are any other questions.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.