Stevens v. Marks

Mr. Justice Harlan, whom Mr. Justice Stewart joins, concurring in part and dissenting in part.

Proper disposition of these cases is rendered more difficult because of seeming confusion that has attended them all along the line. In the courts below the significance of an important New York statutory amendment was apparently overlooked. This Court granted certio-rari limited to a question which, in my view, the record does not present and which the Court does not answer.1 The judgments below are now reversed on different *247grounds never properly set forth by petitioner. With this background, a good case could be made for dismissing the writs as improvidently granted. However, I believe briefing and argument have brought to the fore errors sufficiently plain to warrant setting aside these judgments, although my analysis differs from the Court’s and I consider that a remand, and not an outright reversal, is called for.

It is common ground that petitioner cannot be jailed for refusing to incriminate himself unless either he waived his federal privilege against self-incrimination, or immunity adequate to offset that privilege was conferred upon him. Taking up the first possibility— waiver of the privilege against self-incrimination — it seems to me evident that petitioner was never asked to sign, nor did he sign, a waiver of that privilege. What the New York Constitution and the New York City Charter explicitly require be signed, and what petitioner did in terms sign, is a waiver of immunity from criminal prosecution, that is, a waiver not of the federal privilege but of the state immunity that may be granted to circumvent the privilege.2 That a waiver of the privilege and a waiver of immunity may both often lead a witness to incriminate himself is no reason to blur these two different legal concepts. A State in exacting a waiver of the privilege should turn square corners; New York did not ask for nor did it obtain a waiver of the privilege in *248this instance, so that basis for justifying the contempt convictions is out of the case. The only other basis is a claim that New York has conferred immunity upon petitioner adequate to replace the privilege.

Before turning to that issue, it should be noted that there can be no reason to consider now whether petitioner’s purported waiver of immunity was ineffective or withdrawn. If the Court is right in saying that no statutory immunity was ever conferred and that immunity under the state constitution cannot now be relied on by New York because of Raley v. Ohio, 360 U. S. 423, then it is hardly necessary to decide if this never-conferred immunity was adequately waived or the waiver effectively withdrawn. If New York did properly confer adequate immunity and so offset the privilege, then under Regan v. New York, 349 U. S. 58, it is irrelevant at this stage whether petitioner has or has not lost the benefits of that immunity through waiver since he is obliged to testify in either event. Adequacy or withdrawal of a waiver of the privilege against self-incrimination might sometimes be relevant at this stage, but no waiver of the privilege was even attempted in this instance as I have noted above. On this phase of the case, it only remains for me to demur to the Court’s statement that “we would be unable to find any justification for denying the right to withdraw” the waiver (pp. 243-244, ante). New York has the very deepest interest in uprooting and punishing misconduct by its officials; it also has a narrower interest in having an investigation, commenced on the premise of a waiver, not suddenly balked by the witness’ change of heart. It seems to me there is no federal constitutional reason why a witness who has properly given a voluntary waiver either of his privilege or his immunity should not be held to it.

Turning now to the conferral of immunity as a means of offsetting the privilege and justifying these convic*249tions, I agree with the Court that the pertinent New York statute quite plainly is no longer an automatic immunity statute and that it was not brought into play in this instance. While further consideration on this score should not be foreclosed on the remand which for reasons later indicated I believe should take place here, People v. Laino, 10 N. Y. 2d 161, 176 N. E. 2d 571, seems fairly persuasive that this literal construction of the statute is accurate.3 Disregarding the statute then, the convictions can stand only if immunity adequate to offset the privilege flowed from the state constitution and if petitioner was not misled in his reliance on the privilege. For reasons now set forth, I believe these questions should be decided only after a remand to the state courts.

As construed in Laino, the New York Constitution gives automatic immunity only against use of compelled testimony and its fruits, 10 N. Y. 2d, at 173, 176 N. E. 2d, at 579, and the Court today leaves undecided the question whether this immunity is sufficient to supplant the privilege. While the reference to “absolute immunity against further prosecution” in Counselman v. Hitchcock, 142 U. S. 547, 586, may point toward a negative answer, I agree that the question ought not be decided until it is necessarily presented after a full briefing and argument by the parties. It is perhaps reason *250enough for postponement that the negative answer would perforce invalidate one or more federal statutes which protect only against later use of compelled testimony.4 In addition, this Court has recently extended the Fifth Amendment to the States, Malloy v. Hogan, 378 U. S. 1, and abolished the “two sovereignties” rule, Murphy v. Waterfront Comm’n, 378 U. S. 52, so that an expansive reading of the privilege could have a far more serious impact than was true in the days of Counselman.5 In any event, the question need not be reached if Raley v. Ohio, 360 U. S. 423, governs the instant case.

As I read Raley, it holds that the State may not lead witnesses into believing that no immunity provisions are applicable and then, when the witnesses stand on their privilege, hold them in contempt on the ground that immunity provisions supplanted the privilege. In this case the Court apparently believes that statements of the prosecutor and trial court led petitioner to think that no immunity provisions applied to him even contingently; if this is so, then I would agree the State cannot now rely on the state constitution, or the state statute for that matter, to negative petitioner’s privilege. However, there are no findings on how petitioner understood the statements made to him and they are certainly susceptible of quite a different interpretation. It may well be that the State meant, and was understood by the petitioner, to convey only that it believed petitioner’s waiver of immunity to be valid and irrevocable so that it would attempt to prosecute him on the basis of any testimony he gave. On this reading, it is quite possible *251that both the State and petitioner believed that adequate immunity provisions were generally applicable to the extent of supplanting the privilege and that petitioner would be shielded at a later trial if the State there proved to be wrong in its views on waiver.6 If so, and assuming the state constitution does in law provide adequate immunity, then petitioner was obliged to testify under Regan and was not relevantly misled.7 The present record was not formulated with regard to the Raley problem, that issue was not briefed in its present form, and it seems to me wrong to decide the point without a remand.

I would vacate both judgments and remand the case to the state courts8 so the State may there try to establish that apart from a possible waiver adequate immunity was conferred, and so that petitioner may try to show that he was misled on this score.

Certiorari was limited to the question whether a law is unconstitutional which requires the discharge and bars the rehiring of any public officer who refuses to sign a waiver of immunity and claims his privilege against self-incrimination. 382 U. S. 809.

N. Y. Const., Art. I, §6, requires “a waiver of immunity against subsequent criminal prosecution” and the New York City Charter, § 1123, requires that one “waive immunity from prosecution.” The document signed by petitioner stated that he waived “all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution and punishment N. Y. Penal Law § 2446 states that where any law provides that a person shall not be prosecuted because of his testimony or that testimony he gives shall not be used against him, that person may file a statement “expressly waiving such immunity or privilege.”

In Laino the New York Court of Appeals stated that immunity under the state statutes could be acquired only “by strict compliance with the procedural requirements ...” 10 N. Y. 2d, at 173, 176 N. E. 2d, at 679. N. Y. Penal Law § 2447, governing the procedure for conferring statutory immunity, provides that in the case of a grand jury, the grand jury must be “expressly-requested” by the prosecutor to order the witness to answer and the grand jury must give that order; there appears to have been neither request nor order in this case. That courts might “estop” the prosecutor from later prosecuting in these circumstances should not be taken as the deliberate, assured grant of immunity the Constitution requires.

See, e. g., 49 U. S. C. §9 (1964 ed.) See generally Murphy v. Waterfront Comm’n, 378 U. S. 52, 104, n. 6 (concurring opinion of MR. Justice White).

A number of States appear to provide immunity no greater than that implied by the New York Constitution. See, e. g., Ariz. Rev. Stat. Ann. § 13-384; Conn. Gen. Stat. § 12-2.

It should be noted that nothing in the record indicates that petitioner raised the Raley argument in the lower courts, and that case was not even cited in his petitions for certiorari.

In a footnote, the Court appears to announce as a new and distinct principle that “[a] State must affirmatively demonstrate to the witness that a valid immunity from prosecution is his” before overriding the privilege (p. 246, n. 11, ante). Reading the words “valid immunity” literally, the statement is simply inconsistent with Regan. If instead the Court means that immunity — albeit contingent on the invalidity of a waiver — -must be “affirmatively demonstrated,” regardless of whether the State misled the witness and regardless of whether the witness well knew he had contingent immunity, then I disagree with that proposition which is not supported by Raley.

The case to be so remanded is No. 210; No. 290, which originated in the Federal District Court as a habeas corpus suit should be returned there to await the outcome of any further state proceedings.