Regan v. New York
Opinion of the Court
delivered the opinion of the Court.
Petitioner refused to testify before a New York grand jury which was investigating the alleged association of city policemen with criminals, racketeers, and gamblers in Kings County. He was convicted of criminal contempt and sentenced to one year’s imprisonment. We granted certiorari, 347 U. S. 1010, to determine whether, under the circumstances here presented, petitioner was deprived of his liberty without due process of law in being punished for his refusal to testify. Cf. Adamson v. California, 332 U. S. 46, 54.
The following New York constitutional and statutory provisions are essential to an understanding of the ease. Article I, § 6, of the Constitution of the State of New York provides, in part, that no person shall “be compelled in any criminal case to be a witness against himself.”
Petitioner was first called to testify before the grand jury on March 7, 1951. He was then a member of the Police Department of the City of New York. Prior to being sworn, he signed a waiver of immunity against prosecution.
“While you were a plainclothesman in the Police Department of the City of New York did you ever accept or receive any bribes from bookmakers or other gamblers?”
Petitioner refused to answer the question on the ground that his answer might tend to incriminate him. He made a statement in which he claimed that his waiver of immunity was invalid since he had not understood its significance when he signed it, and no one had explained it to him. He expressed doubt as to his status as a witness and his privileges and duties as such.
Petitioner was taken before the County Court of Kings County to clarify his status. It was there held, after a hearing, that the waiver was valid because petitioner had fully understood its significance when he signed it. Petitioner was directed to answer the question which he had been asked. He returned to the grand jury, but persisted in his refusal to testify. He was thereupon indicted for criminal contempt, tried by a jury, and convicted. His conviction was affirmed by the Appellate Division in a short memorandum opinion, 282 App. Div. 775, 122 N. Y. S. 2d 478, and by the New York Court of Appeals without opinion, 306 N. Y. 747, 117 N. E. 2d 921. The Court of Appeals did amend its remittitur to show that
Petitioner contends that this Court must here determine whether the Fourteenth Amendment prevents a State from imprisoning an individual for refusing to give self-incriminatory testimony. In so doing he ignores the crucial significance of the immunity statute in this case. We simply hold that under the circumstances here presented petitioner was not deprived of any constitutional rights in being punished for his refusal to testify.
The immunity statute is crucial in this case because it removed any possible justification which petitioner had for not testifying. If petitioner had not executed a waiver of immunity, it is clear beyond dispute that he would have had to testify;
First, assume that the waiver was valid. Any testimony which the petitioner gave could then have formed the basis for a subsequent prosecution, and the State would here be punishing the petitioner for his refusal to
The waiver of immunity from prosecution may, on the other hand, be regarded as invalid. Petitioner argues at some length that the waiver was obtained by a “pattern of duress and lack of understanding.” He points to the circumstances attending the signing of the waiver: the size of the room, the number of policemen who simultaneously executed waivers, the speed with which the waivers were obtained, the lack of counsel, etc.
Petitioner suggests that his refusal to testify may have been justified by the uncertainty existing at the time he was directed to testify. That uncertainty was only as to whether or not he could be prosecuted for criminal activity which might be revealed in his testimony. As a matter of state law, a defense to the crime of criminal contempt may be provided when such uncertainty reaches a sufficiently high point.
The judgment below is accordingly
Affirmed.
See also New York Code of Criminal Procedure, § 10.
To the same effect were §§ 584 and 996 of the Penal Law which dealt with the crimes of conspiracy and gambling. These statutes have since been amended. New York Laws 1953, c. 891.
It states that: “. . . any public officer who, upon being called before a grand jury to testify concerning the conduct of his office or the performance of his official duties, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years, and shall be removed from office by the appropriate authority or shall forfeit his office at the suit of the attorney-general.”
“Waiver op Immunity
“I, Michael J. Regan, of No. 3819 Harper Avenue, Bronx, ... of The City of New York pursuant to the provisions of Section 2446 of the Penal Law of the State of New York, do hereby waive all immunity which I would otherwise obtain from indictment, prosecution, punishment, penalty or forfeiture for or on account of or relating to any transaction, matter or thing concerning which I may testify or produce evidence, documentary or otherwise, before the Grand Jury of the County of Kings, in its investigation above entitled or in any other investigation or other proceeding, before any judge or justice, court or other tribunal, conducting an inquiry for legal proceeding relating to the acts of said John Doe, Michael J. Regan, or of any other person.
“I do hereby further waive any and all privileges which I would otherwise obtain against the use against me of the testimony so given or the evidence so produced upon any criminal investigation, prosecution or proceeding. (Signed) Michael J. Regan.”
[Witnessed and notarized.]
The questionnaires never were completed.
See Brown v. Walker, 161 U. S. 591; cf. Counselman v. Hitchcock, 142 U. S. 547.
Petitioner does not challenge the sufficiency of the immunity provided.
There was testimony that the waiver was obtained in a room which measured 'TO x 10, or 12 x 12, approximately,” containing a desk “about 60 x 2” [sic] and a bench upon which “about five people could sit.” About 35 waivers were obtained in a period of 25 minutes. An assistant district attorney made a single speech explaining the nature of the immunity. Immediately after executing the waiver, petitioner testified that he had signed the waiver voluntarily, that it had been explained to him, and that he understood its meaning. Twenty months thereafter petitioner reaffirmed its execution without raising any objection to its validity. It was some twenty-one months after its execution that petitioner challenged the validity of the waiver for the first time. The trial court left the question of the validity of the waiver to the jury. Its verdict of guilty indicates its finding on this matter. The conviction was affirmed by both appellate courts, but we cannot be sure that the affirmance sustained the finding on this matter for the appellate courts may have viewed the question of the validity of the waiver as irrelevant to their decision as we do to ours.
It might be pointed out that, as far as the record shows, this objection was at no point raised below. It appears for the first time in the Petition for Certiorari.
People ex rel. Hofsaes v. Warden, 302 N. Y. 403, 98 N. E. 2d 579.
Concurring Opinion
concurring.
I concur in the opinion and judgment of the Court, but would add that substantial federal questions may arise if the petitioner is again called upon to testify concerning bribery on the police force while he was an officer and if he is thereafter denied immunity as to any offenses related to the investigation.
This Court has never held that a State, in the absence of an adequate immunity statute, can punish a witness for contempt for refusing to answer self-incriminatory questions. A case involving such facts has never been presented here.
However, because it appears from the record to be the intention of the authorities to punish him both for con
Moreover, a state immunity statute — like any other state statute — must be applied uniformly unless there is some reasonable ground for classification; otherwise, the Equal Protection Clause of the Fourteenth Amendment is violated.
However, as already noted, we do not reach these questions here.
Compare Twining v. New Jersey, 211 U. S. 78 (jury instruction authorizing the jury in a criminal case to draw an unfavorable inference from the accused’s failure to take the stand); Adamson v. California, 332 U. S. 46 (state law permitting prosecutor and trial judge to comment on the accused’s failure to take the stand); Snyder v. Massachusetts, 291 U. S. 97, 105 (denial of permission to the accused to accompany jury on visit to scene of crime); Palko v. Connecticut, 302 U. S. 319, 325-326 (state statute allowing appeal by State in criminal cases).
Cf. Terral v. Burke Construction Co., 257 U. S. 529.
See, e. g., Dowd v. United States ex rel. Cook, 340 U. S. 206, and Cochran v. Kansas, 316 U. S. 255.
Dissenting Opinion
dissenting.
In order to keep his job as a New York City policeman petitioner signed a paper waiving immunity he would otherwise have had from prosecution under state law as
For reasons stated on other occasions I believe the Fourteenth Amendment makes the Fifth Amendment applicable to the States. See, e. g., Adamson v. California, 332 U. S. 46, 68. And the Fifth Amendment accords an unqualified privilege to persons to be silent when asked questions answers to which would make those persons witnesses against themselves. See, e. g., Blau v. United States, 340 U. S. 159, 161. Even under the other view of the Fourteenth Amendment, that it does not make the Fifth Amendment applicable to the States and that under some circumstances States may compel persons to testify against themselves, this Court has held many times that a State may not convict a person on testimony it coerced from him. E. g., Leyra v. Denno, 347 U. S. 556, 558; Ashcraft v. Tennessee, 322 U. S. 143, 155; cf. Rochin v. California, 342 U. S. 165. Coercing testimony for that purpose is equally obnoxious to the Fourteenth Amendment. However its action is described, the State is seeking to coerce this petitioner to give testimony to help bring about his conviction for crime. For it is certainly coercion to throw a man into jail unless he agrees to testify against himself.
The Court’s holding appears to approve a dangerous technique whereby both State and Federal Governments can compel people to convict themselves out of their own mouths. Are we to infer that the Federal Government is now free to compel its millions of employees permanently to waive their privilege against self-incrimination or lose their jobs? Surely private employers are not now free to compel their employees to waive this and other constitutional privileges. This might be highly satisfactory to those who believe that the privilege against compulsory self-incrimination has no proper place in our Bill of Rights. But that provision was designed as a continuing rigid safeguard against ruthless exercise of governmental power.
I would reverse this case.
“I would like to venture the suggestion that the privilege against self-incrimination is one of the great landmarks in man’s struggle to make himself civilized. As I have already pointed out, the establishment of the privilege is closely linked historically with the abolition
“If a man has done wrong, he should be punished. But the evidence against him should be produced, and evaluated by a proper court in a fair trial. Neither torture nor an oath nor the threat of punishment such as imprisonment for contempt should be used to compel him to provide the evidence to accuse or to convict himself.” Griswold, The Fifth Amendment Today, 7-8.
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