Matter of Silverberg

327 A.2d 106, 459 Pa. 107, 1974 Pa. LEXIS 455

• Court: Supreme Court of Pennsylvania
• Decided: October 16, 1974
• Docket: 515
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

By order of October 28, 1971, the President Judge of the Court of Common Pleas of Philadelphia authorized a special judicial investigation into unethical conduct by members of the Philadelphia bar. In the course of this investigation appellants were called before an investigating judge who was to determine whether the evidence against them warranted institution of formal charges. The investigating judge concluded that formal charges were indicated.

Appellants were then tried before a three-judge special disciplinary court. The three-judge court found that appellants had engaged in unethical conduct, specifically, by soliciting negligence cases and submitting inflated medical cost reports. Accordingly, Silverberg, Levitan, and Oxman were ordered suspended from the practice of law for one, three, and five years respectively. The hearing court stayed the orders of suspension pending this appeal.¹

At the formal disciplinary hearing, Oxman and Levitan testified in their own defense; they denied any wrongdoing. On cross-examination special counsel for the investigation was permitted to elicit that appellants had claimed the privilege against self-incrimination in the preliminary proceeding before the single investigating judge.² These references to appellants’ exercise of their constitutional rights were allegedly designed only to impeach their credibility. We conclude that utilization, over objection,³ of appellant’s assertion of the privilege against self-incrimination violated their rights under the Fifth Amendment to the United States Constitution ⁴ and article I, section 9 of the Pennsylvania Constitution P.S.⁵ The orders suspending appellants must be reversed⁶ and a new disciplinary hearing held.⁷

In Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), the United States Supreme Court faced the question before us today. Defendant Halperin was accused of corruptly influencing witnesses before a federal grand jury. When called before another grand jury, he declined to answer certain questions because his answers might incriminate him. At trial he answered the same questions in a way consistent with innocence. The government was permitted, over objection, to cross-examine Halperin on his allegedly inconsistent responses. The trial judge however indicated that this cross-examination could be considered only as reflecting on the witness’ credibility.⁸

The Supreme Court reversed. Justice Harlan, writing for the majority, noted that the practice of impeaching a witness’ credibility by bringing out a prior claim of the privilege against self-incrimination “has grave constitutional overtones.” 353 U.S. at 423, 77 S.Ct. at 983-984. Reversal, however, was based on the Court’s supervisory power. Id. at 424, 77 S.Ct. at 984. Two grounds for reversal were advanced. First, the Court, for the sake of argument, assumed that Halperin’s trial testimony and earlier claim of privilege were inconsistent. It then held that the potential for prejudice inherent in this cross-examination so far outweighed its probative value that the trial court in its sound discretion should not have permitted the questions. Id. at 420-421, 77 S.Ct. at 982.

Second, examining the defendant’s testimony further, the Court concluded that the cross-examination was also improper because only prior inconsistent statements may be used to impeach. See 3A J. Wigmore, Evidence § 1040 (Chadbourn rev. 1970). Both the claim of privilege before the grand jury and the exculpatory answers at trial were “wholly consistent with innocence.” 353 U.S. at 421, 77 S.Ct. at 982. Therefore no inconsistency existed and impeachment should not have been permitted.

The concurring opinion of Justice Black, joined by then Chief Justice Warren, and Mr. Justice Douglas and Mr. Justice Brennan, addressed the constitutional issue directly.

“I agree with the Court that use of this claim of constitutional privilege to reflect upon Halperin’s credibility was error, but I do not, like the Court, rest my conclusion on the special circumstances of this case. I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution.”

Id. at 425-426, 77 S.Ct.,at 984-985.

Since Gruneivald was decided, several courts have concluded that the reasoning of the concurring opinion, which, of course, was in no way contradicted by the majority’s failure to reach the constitutional issue, precludes cross-examination by reference to a prior claim of the privilege against self-incrimination. Fowle v. United States, 410 F.2d 48, 51-56 (9th Cir. 1969); Fagundes v. United States, 340 F.2d 673, 677-678 (1st Cir. 1965); Dean v. Commonwealth, 209 Va. 666, 166 S.E.2d 228 (1969); State v. Greer, 17 Ariz.App. 162, 496 P.2d 152 (1972); People v. Jordan, 7 Mich.App. 28, 151 N.W.2d 242 (1967) ; State v. Martin, 84 N.M. 27, 498 P.2d 1370 (Ct.App.1972); Messier v. State, 428 P.2d 338 (Okl.Ct. Crim.App.1967) .⁹

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which held the fifth amendment to prohibit comment on a defendant’s silence, adopted the reasoning of the Grünewald concurring opinion.

“For comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice’ . which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.”

Griffin v. California, supra at 614, 85 S.Ct. at 1232-1233 (citations omitted). See Fowle v. United States, supra, 410 F.2d at 53; Dean v. Commonwealth, supra, 209 Va. at 670, 166 S.E.2d at 231; State v. Greer, supra, 17 Ariz.App. at 165, 496 P.2d at 155; cf. Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). See also Fagundes v. United States, supra; Messier v. State, supra. We agree that an accused’s constitutional right against self-incrimination is violated when a prior claim of the privilege against self-incrimination is introduced to impeach his credibility.¹⁰

It is elementary that a prior statement may be used to impeach a witness’ credibility only if that statement is in fact inconsistent with the witness’ testimony at trial. See 3A J. Wigmore, Evidence § 1040 (Chadbourn rev. 1970). It follows that when the three-judge court permitted the cross-examination in question it must necessarily have inferred that the prior claim of privilege was inconsistent with the later testimony of innocence.

The record does not establish that the three judges who sat as triers of fact in appellant»’ case directly attributed any indicia of guilt to the claims of privilege. But in finding the claims inconsistent with innocence and considering them to impeach appellants’ credibility the Court made a constitutionally impermissible inference. As this Court stated more than a century ago:

“If the privilege claimed by the witness be allowed the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it.”

Phelin v. Kenderdine, 20 Pa. 354, 363 (1853). See Johnson v. United States, 318 U.S. 189, 196-197, 63 S.Ct. 549, 553, 87 L.Ed. 704 (1943).

Appellants testified that they pleaded the privilege upon advice of counsel. Certainly a reasonable attorney could have many reasons other than concealing guilt for advising a client to claim the privilege at the investigatory stage of disciplinary proceedings. The preliminary proceedings were ex parte; appellants had no opportunity to cross-examine and thus had no means to explain possible exculpatory facts. See Grunewald v. United States, supra, 358 U.S. at 422, 77 S.Ct. at 983. “The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” Slochower v. Board of Higher Education, 350 U.S. 551, 557-558, 76 S.Ct. 637, 641, 100 L.Ed. 692 (1956). See E. Griswold, The Fifth Amendment Today 9-30, 53-82 (1957).¹¹

Just as an attorney may not be disciplined for invoking the privilege in a professional inquiry, Spevack v. Klein, 385 U.S. 511, 514-515, 87 S.Ct. 625, 627-628, 17 L.Ed.2d 574 (1967); Schlesinger Appeal, 404 Pa. 584, 614-616, 172 A.2d 835, 849-850 (1961), such invocation may not later be used to impeach his credibility when he asserts innocence. The “impeaching” cross-examination that was permitted here is “a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232-1233, 14 L.Ed.2d 106 (1965); see Grunewald v. United States, 353 U.S. 391, 425-426, 77 S.Ct. 963, 984-985, 1 L.Ed.2d 931 (1957) (concurringopinion).

Here the loss of credibility suffered by appellants for claiming their rights was potentially devastating. Appellants’ defense rested heavily upon their testimony professing innocence. The impermissible impeachment of their credibility effectively neutralized the most important defense witnesses.

On this record we cannot say with assurance that the untáinted evidence alone, however persuasive, was sufficient to convince the trier of fact of appellants’ guilt. The testimony of various witnesses was directly contrary to that of appellants. Credibility was crucial in the factfinder’s determination. The court explicitly stated that it chose to disbelieve appellants’ testimony.

Even though we may assume that the court attached no inference of guilt to the prior plea of privilege, we must conclude that use of the prior plea even to impeach was prejudicial to the defense. Therefore appellants are entitled to a new disciplinary hearing at which no use of their prior claim of the privilege against self-incrimination should be permitted.

Appellant Silverberg’s failure either to claim the privilege in the preliminary proceeding or to take the stand at the disciplinary hearing does not remove him from the ambit of our holding. This was a joint disciplinary hearing. Silverberg as much as either Oxman or Levitan rested his defense on their credibility. See United States v. Tomaiolo, 249 F.2d 683, 690-692 (2d Cir. 1957); State v. Boscia, 93 N.J.Super. 586, 600-602, 226 A.2d 643, 650-651 (App.Div.1967).

The evidence revealed that for two of the four years in question Silverberg was absent from the law office. The three-judge court found that Silverberg engaged in unethical conduct primarily on the theory that in a three-man office one lawyer could not be unaware of his partners’ activities. Silverberg, the court reasoned, though not directly involved in the firm’s personal injury cases, must have known of the conduct of his partners and “shared the ill-gotten gains.”

At the new disciplinary hearing, with Oxman’s and Levitan’s credibility unimpeached by their claim of privilege, they may be found not to have engaged in unethical conduct. Thus to now discipline Silverberg for his knowledge of conduct for which the principals may not be disciplined would be both illogical and unjust. We conclude that Silverberg should also have a new disciplinary hearing because the unconstitutional cross-examination of witnesses appearing in his defense deprived him of a disciplinary hearing conducted in accordance with due process. Cf. In re Disbarment Proceedings, 321 Pa. 81,184 A. 59 (1936); State v. Boscia, supra.

The order of the special disciplinary court is reversed and the case remanded for further proceedings consistent with this opinion.

NIX, J., filed a concurring opinion in which ROBERTS, J., joins. JONES, C. J., filed a dissenting opinion, in which POMEROY, J., joins. POMEROY, J., filed a dissenting opinion, in which JONES, C. J., joins.

1 . This Court’s jurisdiction attaches by the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(6), 17 P.S. § 211.202(6) (Supp.1973). The Philadelphia investigation began prior to the adoption of this Court’s Rule 17. Therefore Rule 17-24(a)(l), which suspended § 202(6), is inapplicable to the instant proceedings.

2 . Silverberg did not claim the privilege at the preliminary proceeding nor take the stand at the disciplinary hearing.

3 . The dissent misapprehends the scope of this Court’s articulated policy “that one can not raise on appeal to this Court errors that were not properly preserved below.” Although we adhere scrupulously to the waiver doctrine in cases reaching us through the normal avenues of criminal or civil appellate litigation, see Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741 (1972), not every case comes here in this standard posture. The instant case is an example.

As the dissenting opinion recognizes, this Court’s review of attorney discipline is de novo. See Act of May 19, 1879, P.L. 66, § 1, 17 P.S. § 1663 (1962). Certainly, the most readily discernible attribute of de novo review is that an appealing party is not limited to objections raised in the tribunal of original jurisdiction. The Act of 1879, in fact, authorizes the submission of new evidence in de novo review of attorney discipline cases (“and the complainant shall have the right to offer new testimony by deposition or otherwise as said supreme court may direct”).

If we may take new testimony, then we may entertain objections to that testimony. And if we may rule on these objections, then certainly when reviewing de novo evidence adduced at the original hearing we may take account of objections in the same manner as the trial court could have if the objection had been raised there.

That the parties may choose to limit their argument to the record before the appellate court does not limit the statutorily-mandated scope of our review. More fundamentally, when our review is de novo, the policies served by our waiver rule are not persuasive. See Dilliplaine, supra, Agie, supra.

Furthermore, contrary to the dissent’s assertion of waiver is the following exchange omitted from the dissenting opinion’s review of the record. This exchange occurred when special counsel first attempted to discredit a witness by referring to his prior assertion of the privilege against self-incrimination.

While questioning J. P. McGraw, a defense witness, Special Counsel inquired:

“Q Do you recall being asked questions about this case before Judge Shoyer and you pleaded the fifth amendment on advice of counsel?

MR. RUTTER: [Appellant’s counsel] I object to that. That is an improper question.

JUDGE BARBIERI: Why?

MR. RUTTER: The fact that a man has taken the fifth is not a proper subject of cross-examination. It is not impeaching.

MR. STEWART: May I be heard on that? There is a United States Supreme Court case right on point.

JUDGE BARBIERI: I don’t think that is a good objection. This is a man who refused to testify before and now he is on to testify and I think counsel has a right to inquire into that. Overruled.”

The dissent concedes that the court erred in allowing this reference to the witness’ prior claim of the constitutional privilege. Nevertheless it is asserted that appellants have waived their right to raise the fifth amendment claim because this objection was not renewed each time another defense witness or appellant was asked the same question. But our waiver rules do not require futile repetition of an objection which has already been rejected by the court. When special counsel asked Oxman the same question which the court had ruled proper when asked of witness McGraw appellant’s counsel was not required to again object only to be again overruled. None of the cases cited by the dissenting opinion require such slavish formalism. See Dilliplaine v. Lehigh Valley Trust Co., supra; Commonwealth v. Agie, supra; Commonwealth v. Henderson, 441 Pa. 255, 272 A.2d 182 (1971); Commonwealth v. Payton, 431 Pa. 105, 244 A.2d 644 (1968).

In a related context, this Court recently has stated that an issue is not waived if counsel, after his initial objection is overruled, does not renew his objection at the end of the challenged testimony. Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917, cert. denied, 414 U.S. 975, 94 S.Ct. 290, 38 L.Ed.2d 219 (1973). In an opinion by Mr. Justice Eagen, we specifically held:

“[T]he repetition of an objection is needless where the same or similar evidence, already duly objected to, is again offered and the trial court’s ruling has indicated that an objection to such evidence will again be overruled.”

Id. at 20, 303 A.2d at 920.

The authorities are in accord that this is the better reasoned rule. 1 J. Wigmore, Evidence § 18, at 331 (3d ed. 1940); McCormick’s Handbook of the Law of Evidence § 52, at 118 (2d ed. E. Cleary 1972).

It is certainly the prevailing view. See, e. g., Sanchez v. United States, 293 F.2d 260, 264-265 (8th Cir. 1961); United States v. Kelinson, 205 F.2d 600, 601-602 (2d Cir. 1953) (Frank, J.) (a lawyer is not required “to become a chattering magpie.” id. at 602); Tucker v. Reil, 51 Ariz. 357, 367-368, 77 P.2d 203, 207-208 (1938); People v. Terry, 57 Cal.2d 538, 568, 21 Cal.Rptr. 185, 203, 370 P. 2d 985, 1003 (1962); McCullers v. State, 143 So.2d 909, 913 (Fla. App.1962); Swanger v. Commonwealth, 255 S.W.2d 38, 39 (Ky. 1953); Louisville & N. R. R. v. Rowland’s Adm’r, 215 Ky. 663, 666, 286 S.W. 929, 930 (1926); Holmes v. Terminal R. R. Ass’n, 363 Mo. 1178, 1188, 257 S.W.2d 922, 926 (1953) (“[Wjhere a party has seasonably objected to evidence of a certain character by one witness and his objection is overruled, he is not required or expected to repeat his objection when testimony of the same character by another witness is offered.”); West-Nesbitt, Inc. v. Randall, 126 Vt. 481, 484, 236 A.2d 676, 678-679 (1967); State v. Taylor, 130 W.Va. 74, 85, 42 S.E.2d 549, 557 (1947). Compare State v. Hodge, 280 Ala. 422, 194 So.2d 827 (1967), with Wilson v. State, 37 Ala.App. 644, 73 So.2d 925, 927 (1954). But see State Highway Dep’t v. Hollis, 106 Ga.App. 669, 127 S.E.2d 862 (1962); Shelton v. Southern Ry., 193 N.C. 670, 139 S.E. 232 (1927).

4 . The fifth amendment right against self-incrimination applies in state disciplinary proceedings. Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); cf. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

5 . Our article I, section 9 analysis is independent of the provisions of the United States Constitution.

6 . In addition to the self-incrimination argument, appellants raise four grounds for reversal. First, they allege evidence gathered by subpoena should not have been considered because the Philadelphia Court of Common Pleas unlawfully delegated the subpoena power to its investigative staff. Second, it is asserted that the court did not have the power to authorize the procedure used in the special investigation. Third, we are urged that the procedure denied appellants their right to confrontation of witnesses and due process. Finally, appellants argue that the evidence is insufficient to warrant the imposition of discipline. Our disposition makes consideration of these arguments unnecessary.

7 . The Act of May 19, 1879, P.L. 66, § 1, 17 P.S. § 1663 (1962), vests in this Court the duty to review attorney discipline cases de novo. See n. 3 supra; Krehel Appeal, 419 Pa. 86, 213 A.2d 375 (1965); Schlesinger Appeal, 404 Pa. 584, 172 A.2d 835 (1961); Moyerman’s Case, 312 Pa. 555, 167 A. 579 (1933). However, where, as here, we find constitutional error in the admission of crucial evidence, we deem it consistent with justice and equity, see 17 P.S. § 1663, to remand rather than to attempt to decide these questions on the cold and diminished record.

In this case, the factfinder’s assessment of the demeanor and credibility of witnesses for each side is the pivotal determination. The credibility of the primary defense witnesses, the attorneys themselves, was impeached and possibly severely impaired by unconstitutional references to their prior claims of the privilege against self-incrimination. We therefore conclude that remand to the special disciplinary court is the only method by which appellants may obtain a decision from a factfinder who has knowledge of all the relevant evidence — testimonial and demeanor, and is untainted by the unconstitutionally-elicited impeachment.

We do not, as the dissent would lead one to believe, hold that exercise of our duty to review attorney discipline cases de novo is discretionary. We have reviewed the record de novo — that is, we have not been bound by the findings of fact of the hearing court. See Krehel Appeal, 419 Pa. 86, 213 A.2d 375 (1965) (Jones, J.). However, our review has convinced us that the cold record is inadequate. We cannot intelligently judge the credibility and demeanor of witnesses by reference to the pages of a printed record. Therefore, consistent with our concomitant duty imposed by the Act of 1879, supra, to act as “the justice and equity of the case shall require,” we remand to the special disciplinary court.

8 . See Grunewald v. United States, 353 U.S. 391, 416-417, 77 S.Ct. 963, 980, 1 L.Ed.2d 931 (1957).

9 . Other jurisdictions refused to permit use of a prior claim of the privilege to impeach even prior to Grunewald. See State v. Youngquist, 176 Minn. 562, 223 N.W. 917 (1929); State v. Conway, 348 Mo. 580, 154 S.W.2d 128 (1941); People v. Russo, 251 App.Div. 176, 295 N.Y.S. 457 (1937); Parrott v. State, 125 Tenn. 1, 139 S.W. 1056 (1911). Several states have statutes prohibiting such use of the claim of privilege. E. g., Mass.Gen.Laws Ann. c. 278, § 23 (1959); M.C.L.A. § 600.2159; Mich.Stat.Ann.1962 Rev. § 27A.2159. Compare Act of May 23, 1887, P.L. 158, § 10, 19 P.S. § 631 (1964).

10 . United States v. Sobell, 314 F.2d 314 (2d Cir.), cert. denied, 374 U.S. 857, 83 S.Ct. 1906, 10 L.Ed.2d 1077 (1963), relied upon by appellees, does not compel a contrary conclusion. In that pre-Griffin case the Second Circuit denied Sobell’s fifth federal collateral attack on his espionage conviction. The court considered Grünewald only in determining whether Sobell had alleged the “significant denial of a constitutional right.” 314 F.2d at 323. Following, as it was bound to, the reasoning of the Grünewald majority, the court of appeals held that the questioned cross-examination did not raise a constitutional issue. Post-conviction relief was thus denied.

11 . See also Ullmann v. United States, 350 U.S. 442, 76 S.Ct. 497, 100 L.Ed. 511 (1956).