Zicarelli v. New Jersey State Commission of Investigation

PETITIONER:Zicarelli
RESPONDENT:New Jersey State Commission of Investigation
LOCATION:US District Court for the Northern District of Texas

DOCKET NO.: 69-4
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: New Jersey Supreme Court

CITATION: 406 US 472 (1972)
ARGUED: Jan 11, 1972
DECIDED: May 22, 1972

ADVOCATES:
Andrew F. Phelan – for appellee
George F. Kugler, Jr. – for the State of New Jersey, amicus curiae
Michael A. Querques – for the appellant

Facts of the case

Question

Audio Transcription for Oral Argument – January 11, 1972 in Zicarelli v. New Jersey State Commission of Investigation

Warren E. Burger:

We will hear arguments first today in number 69-4 was Zicarelli against the New Jersey State Commission of Investigation.

Mr. Querques, you may proceed whenever you are ready.

Michael A. Querques:

Mr. Chief Justice and may it please the Court.

The facts of this particular matter sparse as they are warrant some little attention here this morning.

Sometime in 1969, Mr. Zicarelli was served with subpoena to appear before a new commission in New Jersey which is called a State Commission of Investigation.

The State Commission of Investigation was operating under something else which was new in New Jersey, and that is a so called Use Immunity or Testimonial Immunity Statute.

Consequently, as result of being asked questions and being offered the immunity, which was provided for by the statute, Mr. Zicarelli chose to invoke his privilege under the Fifth Amendment not to testify on the grounds that use immunity so called was not sufficient.

He was not upheld in that argument, and ultimately was held in contempt and appeal was taken to the New Jersey Supreme Court and again, his claim of privilege under the Fifth was denied.

As a result of which, under the statute in New Jersey, somewhat peculiar statute, Mr. Zicarelli was confined to an institution in Yardville, New Jersey, presumably for the rest of his life because the statute in New Jersey provides for no particular period of confinement and it was a civil contempt, civil confinement and as I say, no particular period of cut off.

No, if he had answered the questions, would you then release him?

Michael A. Querques:

Yes Your honor, he would have been released.

He did, as in most civil contempts, he carried the keys to jail in his own pocket?

Michael A. Querques:

That is accurate, your Honor.

So, we are faced then in this case with the ultimate issue as to whether or not, so called use or testimonial immunity is consistent with the Fifth Amendment.

And, this ultimate issue as far as I can make it out from all of the cases that I have read, depends upon the particular answer that you give to the one single test, and that is whether or not, the witness is in the same position, after he has testified as though he had not testified.

And therefore, I would like to try this morning to persuade this Court that a witness such as Mr. Zicarelli would be in a far worst position after he testified then if he had not testified under this use immunity statute.

Warren E. Burger:

You are speaking now of his worsening situation, solely, purely in terms of exposure in possible prosecutions?

Michael A. Querques:

Yes, your honor.

There maybe some other considerations —

Warren E. Burger:

In the state of Federal Courts?

Michael A. Querques:

In both your Honor.

There is a case out of the Third Circuit, Catena involving other individual who had exactly the same problem and the I think that the opinion by Chief Judge Sykes in that case is certainly applicable here.

Chief Judge Sykes says that the Defendant is in a worst position or stated differently.

He is not in the same position as though he had not testified because once the District Attorney would have that compelled testimony, the District Attorney would be able to use that compelled testimony in cross examination.

And Chief Judge Sykes says even if there were no over reference to the compelled testimony, the questions could be phrased in such a way that the use of the compelled testimony would necessarily impeach and damage the Defendant.

Warren E. Burger:

Judge Sykes was speaking of his posture if he recalled as a witness in subsequent trial?

Did he not?

Michael A. Querques:

Yes, Chief Justice.

Warren E. Burger:

Is there anything about the use immunity granted before the Grand Jury or investigative body that would prevent him from claiming his Fifth Amendment privileges anew on any new matter when he was called as the witness in the trial or subjected to cross examination?

Michael A. Querques:

I am not certain that I understand the question but if I do, as I understand the use immunity, it would be of no avail to the Defendant facing the prosecution to raise it all over again because it could be used —

Warren E. Burger:

I repeat my question.

When he is in the Court room for the trial, though some case subsequent to his Grand Jury appearance or in your case appearance before the Commission, is there anything that prevents him from using the Fifth Amendment?

If he is subjected to a question which he thinks in and of itself will incriminate him?

Michael A. Querques:

Well, I think that question is also answered by Judge Sykes and that argument goes along these lines.

That the Defendant, even if assured that the answers he gave in the compelled testimony before the Grand Jury or before a Commission would not be used.

Nonetheless, it would bear on his mind and he would therefore be influenced to forego and give up or forsake that right that he would have to defend himself.

And I think, that is a very crucial consideration.

Leaving that answer and going to the next one that I have in mind, and that is the one by Justice Brennan in the Picarello(ph) decision the dissent, and that would be that the uncertainties of the fact finding process and the hazards to the witness argue very strongly against use immunity.

I do not think that anyone could argue against the fact that the Government would have all of the relevant evidence, and any of us who had experience with the Government know that they are files and then there are confidential files.

Many, many times, if not indeed all the time.

The young District Attorney trying a case in the Federal Court is completely unaware of so called confidential information resting in the confidential file of the Secret Service or Immigration Authorities or the FBI offices.

And consequently, he is not in a position though the burden would be on the Government to show that the prosecution is untainted.

He would be in no position to rebut the evidence offered by the Government.

In addition to that, the best defense for a person placed in the situation where he has to testify under use immunity could never establish if there was for example, an accidental or an unrecorded exchange of information which somehow tainted his indictment.

There would be no way of showing that a poor memory was attendant to the situation in order to show the taint.

Many times, and I think that this Court has seen it recently proofs are lost through either death, through resignation, through disability or through retirement.

The case that I am thinking about is the recent case out of New York of Santa Belo where one Prosecutor made a so called arrangement with the Defendant, and then as a result of leaving his position, another District Attorney came in and would not honor the arrangement previously made.

You could have exactly the same situation here.

One District Attorney would leave his office or would die or retire, and something that was left behind could be used by someone else and the Defendant could never establish it because of that situation.

Santa Belo did?

Michael A. Querques:

Yes, he did your Honor.

But I think—

Is his convictions reversed?

Michael A. Querques:

Yes Sir.

But I think in this situation, I would ask you to understand that it gets more difficult.

We have a situation here where the years may go by and Santa Belo, you have in a direct appeal immediately following the so called reneging on the bargain and he could do it with a great deal or more expedition that put a man in this particular situation.

Warren E. Burger:

Do you have the name of that case that you referred to which Judge Sykes wrote for the Third Amendment?

Michael A. Querques:

Yes, your honor.

Warren E. Burger:

I do not seem to find it in your—

Michael A. Querques:

It is not in the briefs your honor because it was decided after we filed a brief.

Michael A. Querques:

The name of the case is Catena against the very same commission involved in this case.

I am sorry, I understand now that is captured in the name of the warden of the institution whose name would be Albert Elias.

So, it is Catena against Elias.

In the citation?

Michael A. Querques:

It is decided your Honor, pleases on September 2, 1971.

Third Circuit?

Byron R. White:

Did we state the judgment in that case?

Michael A. Querques:

I am sorry Mr. Justice White?

Byron R. White:

Did we stated the judgment in that case?

Michael A. Querques:

Yes.

pending the outcome of this case.

While none of the case is referred to the next point I would like to make, to me as I review the matter, it seems to be of great importance and that is this.

A Defendant placed in this situation could never rebut the Government’s assertion that his prosecution is untainted.

If indeed, there was some collusion or some chicanery between one jurisdiction and another, or between one particular District Attorney and another.

Professor Mansfield points up another reason for indicating that a witness would be much worst off, and that is this argument that upon disclosure by a person that he or she committed a particular offense, the District Attorney once knowing of the commission of that offense by this particular individual.

I would feel would be compelled or forced to go out and make the case or be it he would try to make it independently.

So, you therefore had an individual who before he gave the testimony, compelled as it is would be able to go to sweep at night knowing that there was no concerted effort to have him indicted or as once he gave the compelled testimony, he had to go to sweep each and every night knowing that that District Attorney had sent his investigators out into the field to make a case and not to rest until they made a case.

Potter Stewart:

Do you think that — we are speculating that you are giving us that speculative hypothesis in a case where the person has been affirmatively granted immunity from prosecution.

Do you still think that the District Attorney would be so obsessed with making a case after having an affirmative grant of immunity from prosecution?

Michael A. Querques:

I am sorry Mr. Justice Stewart.

I am arguing against use immunity.

Potter Stewart:

Yes, I know.

Michael A. Querques:

That you were giving this —

Potter Stewart:

This immunity, you sent proofs, you referred to —

Michael A. Querques:

But we were given immunity from prosecution.

I would not make the argument because then the District Attorney would be wasting his time by still trying to go out there and make a case.

The man had immunity from prosecution.

Potter Stewart:

Well, I understand that.

Michael A. Querques:

He would know he could—

Potter Stewart:

I understand your argument if there were a transactional immunity, he would be wasting his time, but your point is that with what you call use immunity and it is a little than use immunity as I read the statute, it is use of the answer or evidence, or evidence derived there from, so it is use and proofs as it is generally put.

Potter Stewart:

But my question is just as to your speculative argument that the prosecuting Attorney after a person has been affirmatively given this immunity, that he would be obsessively motivated to go out and make a case against a man?

Michael A. Querques:

I think he would, yes.

I think he would.

And if you look at it in this page, there maybe more light on that.

Take the situation where the Prosecutor is asking a question in the case where he anticipates only one Defendant.

Let us take for example a rape case.

Potter Stewart:

Yes.

Michael A. Querques:

There is only one Defendant.

Potter Stewart:

Yes.

Michael A. Querques:

If there is only one Defendant, what possible reason would he have under a use immunity statute plus proofs to interrogate that individual?

If he did want to use the answer somehow to the benefit of he himself the Prosecutor.

Potter Stewart:

Of course generally, one does not find that immunity statute used in that type of criminal activity, is not that true?

Michael A. Querques:

True.

Potter Stewart:

This commission, this State Commission was not setup to investigate a deal with individual crimes of violence was it?

Michael A. Querques:

No.

Potter Stewart:

It was setup to deal with organized crime?

Michael A. Querques:

No, that is correct.

But when we are talking about use immunity statutes, I think that we have to include the individual cases, as well as the so called conspiracy or multiple defendant cases because in my honest judgment, there such a statute will be used in both kinds of cases.

Warren E. Burger:

Is it used when there is only one accused person involved or is it used where there are multiple persons?

Michael A. Querques:

I think it would more often be used Mr. Chief Justice in the multiple defendant type case, but I also believe that it would also be used in the individual defendant.

Warren E. Burger:

Can you give me an illustration of an individual crime in which they would have any occasion to use this?

Michael A. Querques:

Yes, I will.

I think in the rape that I have mentioned or if there were a robbery which was carried off by a single individual.

If there were a murder, it was perpetrated by a single individual.

Warren E. Burger:

What would be the point of giving him any kind of immunity?

Michael A. Querques:

That is exactly my point, that if called a man under a use immunity statute and he interrogated him, he would not be giving him anything because he could still prosecute the individual.

So therefore, if he called him in, he must have had some evil motive on his mind, viz-a-viz that particular Defendant.

If he knew that only one man committed the crime and he called in a single individual and questioned him under use immunity, that Prosecutor knows that he ultimately came into independent evidence, he could indict that individual.

Whereas, he would not do it if he had the transactional type of immunity.

Do you think Prosecutors are removed to investigate that type of thing?

Michael A. Querques:

I certainly do.

Do you think, call him before a Grand Jury and ask him a question and he rightfully claims Fifth Amendment as he is fully entitled to do, the Prosecutor might be stimulated in to launching an investigation about it?

Michael A. Querques:

That would depend upon the facts but, if there is stimulation, and I would concede that there would be some depending upon the personality of the particular District Attorney.

The stipulation in such a case would be much, much more mile than the kind of stimulation that would occur if under one of these use immunity statutes.

Byron R. White:

It depends on the Prosecutor?

Michael A. Querques:

The Prosecutor ended up with a confession.

I would think, Mr. Justice White, that any Prosecutor under a use immunity statute.

Who had in effect a confession from the witness that he called in would be obliged to go out and try to make a case.

I can’t imagine sitting back and saying I have a transcript wherein A admits murder and yet, I am not going to do anything about it, by making an independent case.

So A as much worst off.

We come to another consideration which I think probably is the most crucial of all, it is the one that disturbs me as a Lawyer the most, and that is subjecting a witness to this cruel trilemma referred to by Justice Brennan of perjury, self accusation or contempt, and I have analyzed the situation and come to this conclusion.

That if a person —

Byron R. White:

That goes to constitutionality of immunity statute?

Michael A. Querques:

Mr. Justice White, I am sorry.

I did not hear the question.

Byron R. White:

That goes to the constitutionality of any immunity statute?

Michael A. Querques:

Yes.

Byron R. White:

Yes?

Michael A. Querques:

Except that here there is a particular flavor to it because of these trilemma that is forced by the witness.

I would think that the self accusation or confession situation is the least likely to occur.

Because I think that that is the one that a witness would want to avoid the most, confessing to the crime.

I would think on the other hand that the one most likely to occur would be that he would elect because he is forced to testify to commit perjury.

I can concede he may give a false alibi or some other story.

That is a white color crime, say he did not have criminal knowledge or willful intent sufficient to satisfy the statute.

I could even concede that he might plead and trap.

But in any event, I see that he would setup some perjurious story, so that would not have to confess and at the same time, he would not have to go to jail for contempt.

I think it is fairly likely that the person who would not want to accuse himself and at the same time would not want to run the risk of perjury would do this.

He would say, for example, there are two years or maybe three years left before the statute of limitations expires.

And so, I will take the contempt and have myself incarcerated, and wade out the statute of limitations because it is easier to wade out a two or three year-balance on the statute of limitations.

Than it would be to face the indictment and prosecution and then perhaps do 10, 20 or 30 years in jail.

Michael A. Querques:

Now because, that situation will occur and it will occur in every single case where use immunity is used, the witness will have to make a choice of one of those three, there is no other choice.

I say most respectfully that the State, the Federal Government or whoever it maybe is doing something very, very distasteful, and something very, very contrary to the American concept of justice.

Because it is, actually inducing or coercing a crime to take place which has not yet taken place to it the crime of perjury.

If that is not the result, the result is that the man goes to jail for contempt, that is also foreign to our system of justice because you call on a suspect, he refuses to answer the questions, and he ends up in jail for contempt whereas he should have ended up in jail, only if the State in shouldering its responsibility, made an accusation by way of indictment and produced evidence in Court beyond a reasonable doubt.

I also wonder as to what role we Lawyers would play in such a situation and I think, most respectfully that Lawyers would be compelled almost to abandon a client.

I can’t imagine that a Lawyer would feel at all comfortable with a witness facing this trial on him.

Speaking for myself and many others like me, you would be most uncomfortable sitting next to a client knowing that that client has confessed.

There is one case in this Court that in essence says “A Lawyer who tells his client to cooperate and give up all his rights is in worth his soul”.

I would not feel like I were worth my soul if told a man to give a confession rather than require the State to prove its case.

The witness sitting in that chair on the use immunity is sitting and let me call it a “warm chair”.

The chair next to him occupied by the Lawyer is just as warm for the Lawyer indeed it might be very, very warm, it might be hot.

Because the Lawyer would have to be concerned that if his client took the second choice to with perjury, the Lawyer might ultimately be accused of suborning that perjury.

And if we get down to the third possibility and that is contempt, the Lawyer then really is useless to the client because if the client says to the Lawyer under this situation, I am going to do sometime in jail until the statute of limitations runs out.

There is not anything that the Lawyer can do for him.

So, I say for these reasons and many others which I do not have time to elucidate on and hopefully some of the other Lawyers who appear in the cases will.

That transactional immunity as it presently stands should remain, that use immunity is very, very foreign to our system of justice and will work such hazards, and will work such injustices as time will prove if it ever comes to be.

Thank you.

Warren E. Burger:

Thank you Mr. Querques.

Mr. Phelan?

Andrew F. Phelan:

Mr. Chief Justice, and may I please the Court.

It is the appellant’s contention here this morning that he has been incarcerated on the New Jersey State Commission of Investigation, the immunity statute, and he has been in constituted, incarcerated under a provision which is unconstitutional.

A long line of cases, this Court have held that an immunity statute maybe valid.

I submit to you and my further record will State that the commission statute is and was designed to be a use plus proof statute.

It was so designed to attempt to reach a particular problem that existed in the State of New Jersey in the period of Spring of 1968, and was so found to exist by a joint legislative committee of the assembly of that State.

Now, the statute itself recognizes that in order for a immunity statute to supplant the privilege under the Fifth Amendment that it must be co-extensive with the privilege which it seeks to supplant.

It must never put the individual in a situation in which he would be in worst position than had he exercised his privilege or been allowed to exercise his privilege.

Now, we contend that this statute does just that.

The Fifth Amendment says “No man shall be compelled in a criminal case to be a witness against himself”.

Our statute provides after appropriate steps of Due Process within the commission or within the State process, that individual shall not have any of the testimony or the evidence or evidence derived there from used against him in any criminal prosecution.

We submit that under these circumstances, the individual is in exactly the same position as he was had he not been granted the immunity following his claim of the privilege.

Andrew F. Phelan:

Now, since, course Counsel in 1892, which considered a pure use statute.

I, for the record and the commission for the record and I feel state would certainly admit that a pure use statute alone which did not protect against the use of derivative evidence must be unconstitutional.

It completely challenges the logic and reason to be able to say that you can compel a man to answer and then go out and secure evidence on the basis of that answer, and use that against him.

By the same token in the Brown decision some four years later, the transactional immunity statute or the absolute immunity statute, which I believe flowed from Counselmen and perhaps at a time when we were not considering the middle ground, that absolute immunity statute was upheld and that granted I submit a much broader immunity, that which the Fifth Amendment does require.

I submit also that it when utilized, it grants a gratuity to the criminal upon who seeks to exercise it.

I further suggest that it does an injustice to the best interest of the people themselves.

Now, in that middle ground then, we come to the point of just what is it, that the Fifth Amendment will require of an immunity statute in order for it to be constitutional.

I suggest that is a use plus proofs, an absolute situation whereby once you compel a man to testify, you may under no circumstances use anything.

And, I use that term with great consideration.

Anything whatsoever that flows there from, for if we have compelled him to give up a very sacred right, self incrimination against self incrimination.

That then the Government must bear the burden and must bear the duty, and a very heavy duty perhaps it should be, to show that nothing has ever been used against that individual in connection with any future prosecution.

Now, I submit that under such a rule of law with the use plus proof statute, tied in with a heavy burden being placed upon the Government that was noted in note 18 of the Murphy decision, that the burden is placed upon the Government to establish independent source of evidence.

That the individual may very well be in a better position than he is today under a transactional statute.

And I say that for this reason, that under the old Haikey decision in 1913, that the individual must prove as an affirmative defense that that transactional immunity statute has protected him against a subsequent indictment.

I would submit that under a use immunity or use immunity plus proof statute that the burden here would be on the Government.

Now, since the Murphy decision —

Byron R. White:

Tell me why does not New Jersey grand absolute immunity?

Why does New Jersey have kind of a statute that does grant transactional immunity?

Andrew F. Phelan:

The use plus proof —

Byron R. White:

Do you say it is an extravagant — on the one hand that it is an extravagant application of the Fifth Amendment that on the other hand you seem to say that use immunity is even more extravagant?

Andrew F. Phelan:

I believe Mr. Justice White that use immunity alone which would allow the Government or the people thereafter to go out and secure evidence based upon the testimony compelled must be unconstitutional.

Byron R. White:

Yes, yes.

I agree.

Andrew F. Phelan:

I further argue that a transactional or an absolute immunity is too broad, is that it gives to greater gratuity to the individual who seeks to utilize that privilege and then forces the people to secure the absolute —

Byron R. White:

You are suggesting that New Jersey limits its statute to use immunity because it could conceive of situations where it would like to be able to prosecute, the gentlemen may have had before the Grand Jury for the very crime that which he is testified.

Andrew F. Phelan:

I do not suggest here that they would like to prosecute.

In our situation —

Byron R. White:

Or isn’t that the only thing you are protecting.

The only state interest you are protecting is the right to prosecute again or the right to prosecute at some time, in some circumstances for the very crime of that which you would ask him question.

Andrew F. Phelan:

In the first instance, I would say that you were seeking to protect the individual in his constitutional rights.

Andrew F. Phelan:

In the second instance, I would say that you were protecting the public interest and their right to able to get at perhaps, the area of crimes involving involved conspiracies with some activities.

Byron R. White:

With a absolute immunity statute, you can get your evidence of the crimes that you want to prosecute for, but you want to retain the right to prosecute this man for the very crime about which you would ask him questions?

Andrew F. Phelan:

If such evidence of an independent nature should be developed either in a different jurisdiction or at a later date.

Byron R. White:

You think that that possibility is significant enough to warrant to come and clear to this Court arguing for its retention?

Andrew F. Phelan:

Absolutely Sir.

Byron R. White:

So, it is a real possibility that he maybe prosecuted —

Andrew F. Phelan:

I would have to say —

Byron R. White:

For the very crime about what he has been interrogated.

Andrew F. Phelan:

I would have to say that there is certainly is a real possibility of that occurrence.

Byron R. White:

It is substantial enough anyway for New Jersey to have made this choice and the Defendant in this Court.

Andrew F. Phelan:

Well, if I may could just draw this distinction Justice White, hours of the State Commission of Investigation, we are purely an investigative body.

We have absolutely no prosecutorial responsibilities.

We have no criminal jurisdiction whatsoever.

Our function as conceived by the New Jersey Legislature, was with a broad area of responsibility to determine facts which would then allow us to make recommendations to the legislature for perhaps the enactment of legislation to correct a problem as what it seen to exist.

Byron R. White:

Well, in some situations — if I understand you correctly, New Jersey would be better off with an absolute immunity statute than with the use immunity statute.

That is what I gathered you said moment ago that the gentleman being interrogated might even be — the use immunity what would be advantageous to him as compared with transactional immunity.

Andrew F. Phelan:

I suggested that perhaps the individual might be in a better position because with the use plus proofs, the burden of establishing, the relationship would be on the Government and on the people that return the indictment whereas now it is my understanding of the law that with the transactional grant of immunity should he later be indicted that he must prove that as an affirmative defense in the defense of this case.

That was my sole position suggesting that he might be at a better position.

Certainly, I think that if our statute were transactional or would it be such or absolute, we would not be here today.

Byron R. White:

Well, I am just glad — the real purpose of my question is really to inquire about what New Jersey’s estimate is that the actual importance of this issue in terms of — how often will it come up.

Do you think it really makes the difference to New Jersey, to the interest of State of New Jersey in just lots of instances?

Andrew F. Phelan:

I think it makes a very substantial difference Your Honor.

Byron R. White:

So, so, you are saying that there is substantial enough chance to what it prosecutes say –Mr. Zicarelli for the questions, for the crime about which you have been asking him questions?

Andrew F. Phelan:

No, I am not suggesting that at all Sir.

What I am suggesting is that I believe that under the circumstances that existed in New Jersey in 1968, that there was a sufficiently severe problem to warrant the enactment of the statute in order for us as fact finding body, to secure information which could give rise to testimony.

Byron R. White:

Well, I know that you could have done that with the transactional immunity?

Andrew F. Phelan:

But at the same time, we would then have been granting a collective immunity to Mr. Zicarelli.

Byron R. White:

Right, so again I say you want to retain the possibility of being able to prosecute Mr. Zicarelli on independent evidence?

Andrew F. Phelan:

Correct Sir.

Byron R. White:

Okay.

Andrew F. Phelan:

With the burden of proof being placed upon the Government should any indictment ever be forth coming.

Now then —

Thurgood Marshall:

How much weight do you put on this extraordinary situation in 1968 just to find the statute?

Andrew F. Phelan:

The extraordinary situation, well.

Thurgood Marshall:

Well, let me ask–

Andrew F. Phelan:

Yes.

Thurgood Marshall:

Is still in effect, the statute?

Andrew F. Phelan:

The statute is still in effect that—

Thurgood Marshall:

I kind of got there.

Either you have an emergency situation in ’68.

Andrew F. Phelan:

In the Spring of 1968, there was convened in New Jersey, a special legislative committee which found that at time a serious organized crime problem did exist within the State.

Thurgood Marshall:

Well, do you still have the Commission?

Andrew F. Phelan:

The Commission is still in effect.

Thurgood Marshall:

And the statute is being in effect?

Andrew F. Phelan:

Yes Sir, it is.

Thurgood Marshall:

Well, my whole point is what is the great value of what happened in ’68?

To me as continuous statute as of right now.

Andrew F. Phelan:

Well, we hope that to some extent the problem has diminished.

We do recognize that —

Thurgood Marshall:

When the problem disappeared, would the statute be repealed?

Andrew F. Phelan:

I would frankly hope not, because if the use plus proof immunity statute —

Thurgood Marshall:

You are not right when you say it is a good statute, now it is good as long as you care to use.

Andrew F. Phelan:

That is my position Sir.

Thurgood Marshall:

Okay, well then.

Andrew F. Phelan:

Yes Sir.

Now, in terms of protection of the individual since 1892 to the present time which has been some 80 years.

There has been developed in this Court a rule of law and a body of law which did not existed that time.

And to that, I am referring to the exclusionary rule of law that has been utilized in connection with the Fourth Amendment cases, under unreasonable search and seizures, under electronic eavesdropping, under the Sixth Amendment, under the right to Counsel and coerced confessions.

Now, this body of law did not exist, and was not available for the Court’s consideration.

Under Counselmen nor was it available under Brown, and I submit that this Court has now developed a new body of law which is capable and is absolutely certain of protecting the rights of individual.

Andrew F. Phelan:

Should they be found to be abridged under the Fifth Amendment privilege.

I suggest that in terms of the fact that the information and the protection which might be secured to the individual, of course, that information is always in the hands of the Government.

It was in the hands of the Police Department in Miranda decision.

It has always been in the hands of the Government and the electronics eavesdropping cases, or the hands of somebody else.

And still in our Courts, the judiciary throughout this country has found it capable to be able to protect the right of each and every individual.

Now, there are, I would submit to the Court, a number of advantages certainly, to a use plus proofs immunity.

These I believe, in terms of being able to get at, involved conspiracy cases where you are granting solely, the use plus proofs immunity to an individual will allow us a greater opportunity to inquire and to determine the extent of activities in which this individual has been involved.

While at the same time, protecting the interest of the State, perhaps in a future prosecution should that information developed at a later date or in other jurisdiction.

Now for instance, within the State of New Jersey, we have 21 Counties where we are investigating a certain issue in the southern part of New Jersey, and we seek to secure immunity to an individual.

It may very well be that under a transactional statute or an absolute statute, we maybe granting an individual immunity, and granting him absolute protection to future whereas at the same time and completely unbenounced to us, Mr. Hogan in New York maybe conducting investigation, while the District Attorney and Mr. Inspector in Philadelphia maybe conducting investigation, relating to the same individual.

We have absolutely no way of knowing exactly what these individuals are doing, recognizing the entire spread that conspiracy of organized crime, recognizing that it knows no County lines or International lines for that matter.

Or the Federal Government maybe in such a use?

Andrew F. Phelan:

Or the Federal Government itself maybe investigating, yes Sir.

In which of that you could not grant absolute immunity?

Andrew F. Phelan:

Unless this Court should adopt your honor —

Unless we overrule Berkeley against(inaudible).

Andrew F. Phelan:

Unless we recognized the limitation, I believe which was in suggested or implied in Counsel and recognized that a use plus proofs immunity which was suggested in Murphy is a constitutional and a viable standard.

Now if I may just add one thing, I think that under a use plus proof statute, we may very well be for the first time protecting the Defendant who was entitled on the Six Amendment to compulsory process and confrontation of witnesses I suggest this because formerly as United States Attorney, I found that when a person is called as a witness by the Defense, and that individual likes to claim his privilege, the Government is effectively precluded from securing that evidence because the only thing we could grant him would be absolute or transaction immunity.

That fact deprives that Defendant of the right to confront that witness and the right to at least examine on the basis of what he contends is his Defense.

That situation can be corrected with the use plus proofs immunity.

And we will be for the first time realistic, extending the Defendant his right of compulsory self process and confrontation.

I will be doing that because then the United States Attorney cannot contend nor could any other prosecuted contend realistically that we cannot grant him transactional immunity because of the fact that we will be giving him absolute protection in the future, I submit to you that this in itself maybe the most important issue that we have under the use plus proofs.

Thank you Sir.

Warren E. Burger:

Thank you Mr. Phelan.

Mr. Kugler?

George F. Kugler, Jr.:

Mr. Chief Justice, and may it please the Court.

I appear here as amicus to support the position of the Appellee, State Crime Investigation Commission of New Jersey and the 24 States join in views expressed in our brief.

It should be noted that the States still bear the primary responsibility for enforcement of the criminal law.

Most crimes are certainly matters of local concern.

These immunity statutes have been extremely important part of our rights in fighting crime particularly, organized crime and official corruption.

George F. Kugler, Jr.:

One of the most important powers of any Government in preventing the infiltration of crime in that Government is the power to compel citizens to testify in Court before Grand Jury or Agencies such as the State Crime Investigation Commission.

On the other hand, we recognized that one of the most important privileges of any citizen is the Fifth Amendment privilege against self incrimination.

Obviously, there must be a balance struck between the power on the one hand and compel a witness to testify in Court, and the privilege on the other that anything he says may not be use against him.

It seems to me that the– of course, it all started in Counselmen and whether you read that case as I do, merely holding that the statute in that case was defective because it did not provide proofs immunity in addition to use immunity, certainly, it must be said in all candor that as a result of the equivocal language in that case and the decision of Brown versus Walker case right after it, in which four Justices dissenting and indeed said that no immunity statutes are constitutional.

There arose in the law and in the cases from this Court a many statements to the effect that transactional immunity was the only viable way to compel a witness to testify.

I think the first crack in the dyke if I may respectfully suggest it came in the three cases of Garidi, Gardener and the Sanitation Workers case, and these cases have been tremendously helpful to the States in official corruption and indeed in calling before official bodies or just the boss themselves in a particular community and requiring public officials under duress of losing their jobs, explaining any particular criminal conduct that might come to the attention of the authorities.

This Court has held I believe and has stated that only use plus proofs immunity is necessary as a result of any testimony they give and indeed if they refused to explain their activities, they maybe fired.

The next crack in the dike, if the Court please, I would say in the unanimous decision of Murphy versus the Waterfront Commission.

Personally, I fail to take the intellectual step of differentiating the rule in Murphy which applies inter-jurisdictionally, differentiate that from most cases which would indicate a different rule as required in Traft jurisdictionally and that is in the case where this compelling state also is prosecuting state.

To answer the question of Mr. Justice White, I think, they are very practical considerations of the States that are faced within, this very case and Zicarelli, we had at least five indictments and maybe six, I am not sure and three of them have been already tried and he has been convicted.

At the time, the SCI called him before them and I have no doubt that the SCI would have gone into the matters contained in those indictments.

But we had clearly intendant evidence.

We were not worried about prosecuting Zicarelli on those cases.

We probed them under any test, we could prove that our evidence was independent.

However, we would felt much more comforted as it has been if we were sure of our position that use plus proofs has been constitutional.

As the statute provides, I have to say to the Court that even though we have had a use plus proofs immunity statute for sometime in several sectors of New Jersey, we have used it generally for the reason that we were certainly weren’t sure of what constitutional ramifications were.

Under the scheme of things, the legislature has ordained that there shall be a State Crime Investigation Commission.

In my opinion, it was absolutely necessary.

They did not make the Attorney General counsel for that commission, they said in fact the State Crime Investigation Commission can go out and get a compelled testimony by a Court order without the permission of the Attorney General, to be sure, they must get me 24 hours notice.

Indeed in a very relevant investigation of theirs, they could conceivably destroy already made prosecution of ours.

In New Jersey, the witness immunity statute intra-jurisdictionally, that is the Federal versus the State has been extremely affected.

And in many cases in which the Federal Government has recently got indictment.

Unfortunately, we have run a file of each other in several instances and some of the cases that we have ready to go to trial may have been affected by that prosecution.

Now, I suggest to you that most all of the States have little systems of Federalism, if you will.

With the exemption of Rhode Island in Delaware where all the prosecution is done at one level.

Certainly, New Jersey has 21 County Prosecutors, the Attorney General’s Office, and the SCI and also that Cities are empowered to conduct investigation.

With 450 some Police forces, it is very difficult to keep from stepping on each other’s toes with all kinds of cooperation.

And therefore, if indeed use plus proofs immunity is constitutionally sound then it seems to me, that is the practical way to have the States and local Government retain their respective rights to use this very, very powerful weapon of witness immunity.

There seems to be a feeling that the States cannot handle this immunity statute that is too rich for the law that inadvertently or deliberately compelled testimony will be misused in some way because of the closed cooperation among the various Law Enforcement Agencies in the State.

I say to this Court that I believe the States can use it effectively and constitutionally.

George F. Kugler, Jr.:

I think, for instance, the Picarelli case is a splendid example of effective use of the witness immunity statute.

In that cases as the Court knows, the individual had pled guilty to beating somebody with a tire arm.

The Prosecution Authorities want to find out whether he was hired to do so, and they called the man before that Court having all ready sufficient and dependent evidence to prosecute him as to matter of fact, he had pled guilty.

And, they did so and he did indicate that he has been hired.

Unfortunately, he then disclosed individual that hire him.

But he could had and it would have been effective use and there is no reason under the constitution that he should he not have been prosecuted.

I believe that a simple task in handling this weapon in this day, whenever you want indeed has Counsel, unlike in the days of Counsel Man and the liberal discovery rules in all jurisdiction neither constitutionally required or by rule of Court, I believe that the Defense Counsel and will they clear record of what is been compel can sort out whether or not your convicting a man from his own lips or the proof’s thereof.

Now, I believe that the test should be the burden of beyond the State, and that—the test should be that if the Defendant had remain in silence, he would not of been indicted or not had been convicted as the case might do it.

This task was originally suggested in Counsel, and I believe that is a sound task and I believe the Courts can handle it without violating anybody’s constitutional rights.

I urge this Court to overrule Counsel Man if necessarily, and stick with the doctrine of the Murphy case and apply it inter jurisdictionally and I think in that way, we will have much more effective Law Enforcement and indeed Constitutional Law Enforcement.

Thank you.

Warren E. Burger:

Thank you Mr. Kugler.

Mr. Querques, you have anything in further?

Michael A. Querques:

Chief Justice, I would like to respond just for a few moment as if I have not left to of what you think that Mr. Phelan said.

Mr. Justice White asked Mr. Phelan or whether or not indeed the State of New Jersey wanted to retain the right to prosecute the man who was called about the very matters about what he was questioned.

And Mr. Phelan said to the Court that his commission had no prosecutorial responsibility.

While that is true, it is also true under their statute that they are obliged to disseminate the information which they obtained from question for the local Prosecutors who are 21 in number, for the State Attorney General’s Office, and to the Federal Authorities.

In short, anybody who might be able to use it.

Mr. Phelan indicated that this statute comes in handy and discovering evidence with respect to large scale conspiracies assume that to be true.

I do believe that it is asking for anything to give a man immunity from prosecution, that he helps you to solve a large scale conspiracy case, and gives testimony against seven, eight, nine, 10 or more co-defendants.

Done everyday, prosecutors like to do it, and it would just actually be a continuation of that situation.

Warren E. Burger:

If that came to pass Mr. Querques, the prosecution whether Federal or State making use of it would have burden of proving an independent source, is that correct?

Michael A. Querques:

That would be correct, Mr. Chief Justice.

Warren E. Burger:

If they had an independent source that was prior to the inquiry, under which testimony was compelled, why should they not be able to use the testimony for that independent source?

Michael A. Querques:

That is a very rare situation, and I would think —

Warren E. Burger:

Let us assume on.

Michael A. Querques:

I would think that they would be full hardened, indeed assuming that they had an independent case, then to call to in the witness whom they want to prosecute.

Warren E. Burger:

I am speaking of another jurisdiction.

Take the hypothetical at some time, I believe Mr. Justice White suggested or someone did in response to his question.

That Mr. Frank Hogan in New York is deeply involved in an investigation that is being carried on with great secrecy as some of these investigations are?

Warren E. Burger:

And unknown to him, a witness who is granted immunity over in New Jersey or down in Pennsylvania.

If he can show, Mr. Hogan can show that he had this information long before, the investigation in New Jersey or Pennsylvania, can you suggest any reason why he should not be permitted to use it, if he can carry that burden?

Michael A. Querques:

He should be permitted to use it.

I have no objection to that, but I quickly point out to the Court that he can use it on the transaction only he if he could.

Because under Murphy, Mr. Hogan is only barred from using the fruits, that he has an independent case, whether it be transactional immunity or use immunity, Mr. Hogan can proceed with his case.

Warren E. Burger:

But, we are not — this Court is in a position to make a choice between two different kinds of immunity.

One of which is more desirable than another Mr. Querques.

We are just required to make a decision other the constitutional forbids a particular one, which is before us today.

Michael A. Querques:

Yes, I quite understand that and for the reason that indicated that I think, with respect to the questioning jurisdiction, the constitutional standard is only met when the questioning jurisdiction gives prosecutional immunity or absolute —

Byron R. White:

(Inaudible) differently say than a prosecutor in some other county of New Jersey?

Michael A. Querques:

Mr. Justice White, I —

Byron R. White:

Just because it happens to be part of the same phase, is that it?

Michael A. Querques:

Well, because Mr. Hogan is not bringing in that witness.

He is not making a decision—

Byron R. White:

Only there is a Prosecutor in the other county?

Michael A. Querques:

If I understood your question, it assume that—for example, a New Jersey Prosecutor would bring in a witness, and question—

Byron R. White:

What you are saying — you are saying that if the District Attorney in San Francisco, all of the witness before a Grand Jury, and that answers the question, that if he gives him immunity, that immunity must be absolute —

Michael A. Querques:

Yes.

Byron R. White:

Transactional immunity, and that a Prosecutor in Los Angeles is in great secrecy, also developing a case.

It has a case against the gentlemen who is being questioned in San Francisco.

May not go forward with its independent case, the Prosecutor in Los Angeles may not.

Although, the Prosecutor in Las Vegas or the Prosecutor in Washington may go forward with it as long as he can prove an independent source.

Michael A. Querques:

Yes, because he is not from the questioning jurisdiction.

Byron R. White:

Well, so your answer is yes —

Michael A. Querques:

He has an upset — upset the balance.

Byron R. White:

You wish a treat the Prosecutor in Los Angeles differently than the Prosecutor in Washington?

Michael A. Querques:

No, I do not think — excuse me Sir, I do not you are treating them differently.

You are analyzing the situation to determine whether or not that questioning Prosecutor, number 1, knows what he is doing, and you are telling him in advance that if you call in Mr. X and you question him.

You better be prepared to give him transactional immunity because we can bind you in that way under the United States Constitution.

On the other hand, Mr. Prosecutor in New York, we cannot bind you under the constitution for giving prosecutional immunity, because you did no call in that man.

Michael A. Querques:

You did not make a decision.

So, we cannot bind your hand.

We cannot tell you what to do other than to say “You cannot use the proof’s” or what the Prosecutor in San Francisco did.

Byron R. White:

Neither did the Prosecutor in Los Angeles calling in, unlike him?

Michael A. Querques:

I make it just as clear as I can.

A Prosecutor who does not call in the witness should not be bound for the same standard as the Prosecutor who has plenty of time to think about what he is doing.

Byron R. White:

Well then—

Michael A. Querques:

And, call then the individual.

Byron R. White:

Alright, let us say the Prosecutor in San Francisco would be bounded, what about the Prosecutor in Los Angeles?

Michael A. Querques:

Not bound.

San Francisco, Los Angeles, both in California would be bound Sir.

Byron R. White:

Both are in the same State, he was bound —

Michael A. Querques:

Yes, I would say he is bound, because they are working under one sovereign.

Byron R. White:

So, the different prosecution?

Michael A. Querques:

But, he is working in the State that he is working within the same framework.

Warren E. Burger:

But within State where a District Attorney was elected in each District, the sovereign of that District Attorney is not the State.

The sovereign, the voters who elected him, is not that true?

Michael A. Querques:

Well.

Warren E. Burger:

In that District —

Michael A. Querques:

That is one way to look at it.

I cannot look at it that way.

Warren E. Burger:

You were emphasizing earlier Mr. Querques that something you called a Trilemma, you seem to suggest that the law has some kind of duty to spare a man from the temptation or as you put it the pressure to commit perjury in order to save himself?

Michael A. Querques:

I do not it should spare him, I say it should not induce him to do it.

Warren E. Burger:

Now, what about the man who takes the stand in a criminal case in his own defense to testify?

On direct examination of Garcia’s Counsel he is going to be quite cautious about what he asks him.

I would assume you have conceive that?

Michael A. Querques:

Yes, your honor.

Warren E. Burger:

Does not the broad power of cross examination, put that witness to defendant under a great temptation or pressure, do you want to use that term?

To commit perjury in order to avoid unpleasant answers?

Michael A. Querques:

I would say yes, it does to you but, it does it in a different framework.

Michael A. Querques:

And, do not lose sight of the fact pleas that the defendant in the given case, when he takes the stand, he takes it knowing that he is waived his right under the Fifth Amendment, whereas the follow who is sitting home having dinner one evening and receives a subpoena, he has not elected to take the stand.

He is compelled to take the witness chair, whether it be Grand Jury or SCI or anything else, there is that crucial difference.

Warren E. Burger:

I am just focusing just on the pressure here.

You were suggesting that it is unfair to put a man under pressure to commit perjury in order to save his neck, that is the way you put it, but the pressure is the same kind of pressure by way of cross examination in that sense, is it not?

Michael A. Querques:

I would conceive to you that once the Defendant in a trial elects to take the stand, he yes, is under pressure.

But the pressure to begin with, is a lot less, and it is a pressure that he is wiling to take, and it is a pressure against which he has no constitutional guarantee.

He has waived that constitutional guarantee by walking into chair.

The man that we are talking about has not waved anything.

They have forced him into the chair and enforcing him into the chair, they forced him into that trilemmic situation, which he cannot live with, his Lawyer cannot live with and I say that this society should not live with it.

Warren E. Burger:

Very well, Mr. Querques, thank you and thank you gentlemen.

The case is submitted.