Zicarelli v. New Jersey State Commission of Investigation

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

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


Media for Zicarelli v. New Jersey State Commission of Investigation

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 --