OPINION
CONNOR, Justice.
This is an appeal from a denial of a writ of habeas corpus.
McCracken was arrested and charged with being a felon in possession of a firearm, a violation of both Alaska law1 and the conditions of his parole.2 A parole revocation hearing was scheduled prior to his trial on the criminal charges.3 McCracken applied for a temporary restraining order and preliminary injunction staying the revocation proceeding until after the criminal trial. He claimed that failure to reverse the order of proceedings would force him to stand mute at the hearing in order to preserve his defenses at the criminal trial. The superior court decided that the revocation hearing could proceed, with the proviso that the hearing be closed to all persons other than those “essentially necessary” and that “any testimony given on behalf of the defense shall not be used against the defendant in any way whatsoever . . .
McCracken did not testify under oath at the revocation proceeding or present any witnesses. After hearing the testimony of witnesses presented by the state, the board of parole found that McCracken had violated his conditions of release by unlawfully possessing a firearm and remanded him to [992]*992custody to continue serving his original sentence.4 Four months later, the trial of the criminal charges ended in acquittal on all counts.
McCracken’s petition for a writ of habeas corpus claiming denial of due process at the revocation hearing was denied. He now appeals.
I.
First, petitioner argues that the lower court erred in holding that the denial of the preliminary injunction is res judicata in the habeas corpus proceeding. We agree. Historically, res judicata did not operate as a bar to habeas corpus.5 As the Supreme Court stated in Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837, 859-60 (1963):
“It is of the historical essence of habeas corpus that it lies to test proceedings' so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas corpus proceedings ... is really but an instance of the larger principle that void judgments may be collaterally impeached.” [citations omitted]
We also agree with the Supreme Court’s statement in Darr v. Burford, 339 U.S. 200, 214-15, 70 S.Ct. 587, 596, 94 L.Ed.2d 761, 772-73 (1950):
“AH the authorities agree that res judica-ta does not apply to applications for habe-as corpus. The courts must be kept open to guard against injustice through judicial error.” [footnote omitted]6
II.
Second, petitioner claims that, notwithstanding the grant of immunity bestowed [993]*993by the superior court, the scheduling of the revocation hearing prior to the trial on the criminal charges forced him to make an unconstitutional election between his due process right to present a defense at the hearing7 and his right against compulsory self-incrimination.8 Although we were not required to address the question then, in State v. DeVoe, 560 P.2d 12 (Alaska 1977), Justice Rabinowitz in a concurring opinion wrote:
“When the probation revocation proceeding is based upon alleged criminal conduct as to which the probationer’s innocence or guilt remains to be adjudicated in a criminal proceeding, there is the possibility of dilution of the probationer’s privilege against self-incrimination . In my view this is a problem of some significance which calls for solution.”
Id. at 16. We are now presented with an opportunity to address this issue.
It is clear that the parolee is entitled to certain due process rights at a parole revocation hearing, including the “opportunity to be heard in person and to present witnesses and documentary evidence.” Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, 499 (1972); See also Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656, 664 (1973) (probation revocation hearing); McGinnis v. Stevens, 543 P.2d 1221, 1236 (Alaska 1975) (prison disciplinary hearing).9 These due process requirements are designed to insure an accurate fact-finding process as well as the informed use of discretion by the parole board, Gagnon v. Scarpelli, 411 U.S. at 785, 93 S.Ct. at 1761, 36 L.Ed.2d at 663, for it would serve neither the interest of the state nor that of the parolee to revoke conditional liberty on the basis of erroneous information.
It is also clear that permitting a parolee’s testimony at a revocation hearing to be used against him in a subsequent criminal trial for the very conduct which forms the basis of revocation is potentially incriminating. In Scott v. State, 519 P.2d 774, 786 (Alaska 1974), we reaffirmed that “[t]he fundamental right not to incriminate one’s self . . . ‘extends not only to answers that would in themselves support a conviction but also to those which might furnish a link in the chain of evidence leading to a conviction.’ ” [footnote omitted] quoting from McConkey v. State, 504 P.2d 823, 826 (Alaska 1972).
The United States Supreme Court has held that an individual has a constitutional right to remain silent in any “proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 281 (1973), Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S.Ct. 1551, 1557, 47 L.Ed.2d 810, 820 (1976). Petitioner maintains that in exercising his right to remain silent “he was penalized by virtue of the loss of his due process rights” to put on a defense at the revocation hearing. The United States Supreme Court has repeatedly condemned the practice of imposing a substantial penalty for the exercise of the privilege against self-incrimination. The most recent decision in this area is Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). In that case, an officer of a political party was told that if he refused to testify before a grand jury or waive immunity from the later use of his testimony under the New York Election Law he could be removed from his party office and prohibited from holding office for five years. The Court held that the Fifth Amendment prohibits a state from compelling testimony “by threatening to in[994]*994flict potent sanctions unless the constitutional privilege is surrendered . . . Id. at 805, 97 S.Ct. at 2135, 53 L.Ed.2d at 7.
Lefkowitz affirmed the teaching of a long line of cases that the state cannot condition the exercise of the privilege against compulsory self-incrimination upon the forfeiture of another constitutionally protected right.10
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
CONNOR, Justice.
This is an appeal from a denial of a writ of habeas corpus.
McCracken was arrested and charged with being a felon in possession of a firearm, a violation of both Alaska law1 and the conditions of his parole.2 A parole revocation hearing was scheduled prior to his trial on the criminal charges.3 McCracken applied for a temporary restraining order and preliminary injunction staying the revocation proceeding until after the criminal trial. He claimed that failure to reverse the order of proceedings would force him to stand mute at the hearing in order to preserve his defenses at the criminal trial. The superior court decided that the revocation hearing could proceed, with the proviso that the hearing be closed to all persons other than those “essentially necessary” and that “any testimony given on behalf of the defense shall not be used against the defendant in any way whatsoever . . .
McCracken did not testify under oath at the revocation proceeding or present any witnesses. After hearing the testimony of witnesses presented by the state, the board of parole found that McCracken had violated his conditions of release by unlawfully possessing a firearm and remanded him to [992]*992custody to continue serving his original sentence.4 Four months later, the trial of the criminal charges ended in acquittal on all counts.
McCracken’s petition for a writ of habeas corpus claiming denial of due process at the revocation hearing was denied. He now appeals.
I.
First, petitioner argues that the lower court erred in holding that the denial of the preliminary injunction is res judicata in the habeas corpus proceeding. We agree. Historically, res judicata did not operate as a bar to habeas corpus.5 As the Supreme Court stated in Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837, 859-60 (1963):
“It is of the historical essence of habeas corpus that it lies to test proceedings' so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas corpus proceedings ... is really but an instance of the larger principle that void judgments may be collaterally impeached.” [citations omitted]
We also agree with the Supreme Court’s statement in Darr v. Burford, 339 U.S. 200, 214-15, 70 S.Ct. 587, 596, 94 L.Ed.2d 761, 772-73 (1950):
“AH the authorities agree that res judica-ta does not apply to applications for habe-as corpus. The courts must be kept open to guard against injustice through judicial error.” [footnote omitted]6
II.
Second, petitioner claims that, notwithstanding the grant of immunity bestowed [993]*993by the superior court, the scheduling of the revocation hearing prior to the trial on the criminal charges forced him to make an unconstitutional election between his due process right to present a defense at the hearing7 and his right against compulsory self-incrimination.8 Although we were not required to address the question then, in State v. DeVoe, 560 P.2d 12 (Alaska 1977), Justice Rabinowitz in a concurring opinion wrote:
“When the probation revocation proceeding is based upon alleged criminal conduct as to which the probationer’s innocence or guilt remains to be adjudicated in a criminal proceeding, there is the possibility of dilution of the probationer’s privilege against self-incrimination . In my view this is a problem of some significance which calls for solution.”
Id. at 16. We are now presented with an opportunity to address this issue.
It is clear that the parolee is entitled to certain due process rights at a parole revocation hearing, including the “opportunity to be heard in person and to present witnesses and documentary evidence.” Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, 499 (1972); See also Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656, 664 (1973) (probation revocation hearing); McGinnis v. Stevens, 543 P.2d 1221, 1236 (Alaska 1975) (prison disciplinary hearing).9 These due process requirements are designed to insure an accurate fact-finding process as well as the informed use of discretion by the parole board, Gagnon v. Scarpelli, 411 U.S. at 785, 93 S.Ct. at 1761, 36 L.Ed.2d at 663, for it would serve neither the interest of the state nor that of the parolee to revoke conditional liberty on the basis of erroneous information.
It is also clear that permitting a parolee’s testimony at a revocation hearing to be used against him in a subsequent criminal trial for the very conduct which forms the basis of revocation is potentially incriminating. In Scott v. State, 519 P.2d 774, 786 (Alaska 1974), we reaffirmed that “[t]he fundamental right not to incriminate one’s self . . . ‘extends not only to answers that would in themselves support a conviction but also to those which might furnish a link in the chain of evidence leading to a conviction.’ ” [footnote omitted] quoting from McConkey v. State, 504 P.2d 823, 826 (Alaska 1972).
The United States Supreme Court has held that an individual has a constitutional right to remain silent in any “proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 281 (1973), Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S.Ct. 1551, 1557, 47 L.Ed.2d 810, 820 (1976). Petitioner maintains that in exercising his right to remain silent “he was penalized by virtue of the loss of his due process rights” to put on a defense at the revocation hearing. The United States Supreme Court has repeatedly condemned the practice of imposing a substantial penalty for the exercise of the privilege against self-incrimination. The most recent decision in this area is Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). In that case, an officer of a political party was told that if he refused to testify before a grand jury or waive immunity from the later use of his testimony under the New York Election Law he could be removed from his party office and prohibited from holding office for five years. The Court held that the Fifth Amendment prohibits a state from compelling testimony “by threatening to in[994]*994flict potent sanctions unless the constitutional privilege is surrendered . . . Id. at 805, 97 S.Ct. at 2135, 53 L.Ed.2d at 7.
Lefkowitz affirmed the teaching of a long line of cases that the state cannot condition the exercise of the privilege against compulsory self-incrimination upon the forfeiture of another constitutionally protected right.10 In all of these cases, the “penalty” imposed for the assertion of the privilege against self-incrimination was the automatic loss of a tangible benefit, such as a job or a contract. The question here is whether forcing the defendant at a revocation hearing to choose between producing evidence which may incriminate him at later trial or remaining silent and foregoing a valuable defense, constitutes a penalty for the exercise of the privilege against self-incrimination.
In another line of cases, the Supreme Court has addressed the problem of whether the surrender of one constitutional right for the exercise of another imposes an impermissible penalty. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court held that when a defendant testifies at a suppression hearing on the issue of standing to object to evidence, his testimony may not thereafter be admitted against him on the issue of guilt. Reasoning that this placed the defendant in a position where he “was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or ... to waive his Fifth Amendment privilege against self-incrimination” the Court found it “intolerable that one constitutional right should have to be surrendered in order to assert another.” Id. at 394, 88 S.Ct. at 976, 19 L.Ed.2d at 1259.
A subsequent Supreme Court decision, McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), has cast doubt on the continued validity of this language in Simons.11 That case involved a challenge to Ohio’s procedure of having a single trial on the issues of guilt and punishment. In rejecting the defendant’s contention that this procedure presented an intolerable tension between his due process right to address his sentencer and his privilege against self-incrimination, the Court noted that the choice was analogous to many other difficult choices which criminal defendants and their attorneys routinely face. “The threshold question,” the Court concluded, “is whether compelling the election (between the exercise of constitutional rights) impairs to an appreciable extent any of the policies behind the rights involved.” 12 Id. at 212, 91 S.Ct. at 1470, 28 L.Ed.2d at 729. One year later in Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), the Court held that a statute requiring the defendant to testify, if at all, before any other defense witnesses could testify unconstitutionally infringed on the right to remain silent “by making its [995]*995assertion costly.” Id. at 611, 92 S.Ct. at 1894, 32 L.Ed.2d at 363.
The Supreme Court’s most recent pronouncement on the issue of conflicting constitutional rights is in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). In the context of prison disciplinary proceedings, the Court implicitly found that drawing adverse inferences against an inmate for failure to testify does not impose an impermissible penalty on the exercise of one’s Fifth Amendment right to remain silent.13 The Court held, in dictum, however, that use immunity would be required should criminal proceedings later be instituted against the inmate:
“Prison disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered ‘whatever immunity is required to supplant the privilege’ and may not be required to ‘waive such immunity.’ ”
Id. at 316, 96 S.Ct. at 1557, 47 L.Ed.2d at 820, quoting from Lefkowitz v. Turley, 414 U.S. 70, 85, 94 S.Ct. 316, 326, 38 L.Ed.2d 274, 286 (1973).
It is apparent from analysis of the above cases that there is no clear standard for determining what choices constitute a penalty for the assertion of a constitutional right as opposed to a mere tactical decision. For this reason most state courts which have faced the question of whether revocation of probation prior to the criminal trial on the same charges violates the probationer or parolee’s Fifth Amendment rights have declined to decide the constitutional issue and have instead based their decision on their supervisory powers.14 The California supreme court in People v. Coleman, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024 (1975), facing the identical question of whether revocation of probation on the basis of a criminal charge, prior to the trial on that charge, violated the defendant’s right against self-incrimination, stated:
“Whether or not it actually abridged defendant’s constitutional rights, the choice forced upon him at his revocation hearing was unnecessarily inconsistent with constitutional values.
[RJegardless of whether we are constitutionally compelled to do so, in the interests of justice and in the exercise of our inherent supervisory powers over the courts of this state, we should alleviate the hard testimonial choice facing probationers subject to the loss of probation for conduct for which they may also be liable to criminal prosecution.”
Id. 120 Cal.Rptr. at 390, 533 P.2d at 1030.
The Coleman court concluded that the practice of holding a revocation proceeding based upon commission of another crime prior to the disposition of that charge adversely affects at least two of “the many and varied policies underlying the privilege against self-incrimination.” Id., 120 Cal. Rptr. at 392, 533 P.2d at 1032. First, permitting the estate to conduct a revocation hearing prior to a criminal trial offends the notions underlying the privilege against [996]*996self-incrimination by disrupting the maintenance of a “fair state-individual balance” at the criminal trial, where the burden of proving the guilt of the defendant must be shouldered entirely by the state.15 Id., quoting Murphy v. Waterfront Commission, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678, 681 (1964). There is the danger that the prosecution will use the revocation hearing, with its lower standard of proof, to gain evidence for the criminal trial, thus slighting its investigatory responsibilities.16 Second, forcing a parolee or probationer to choose between his right to remain silent and his opportunity to be heard, while possibly not rising to the level of “compulsion” prohibited by the Fifth Amendment, poses an unfair dilemma which “runs counter to our historic aversion to cruelty reflected in the privilege against self-incrimination.” Id., 120 Cal.Rptr. at 394, 533 P.2d at 1034. The dilemma is enhanced by the Supreme Court decision in Baxter, because silence may now be more costly at a revocation proceeding than at a criminal trial.17
Some authorities conclude that this dilemma can only be resolved by requiring the state to postpone the revocation hearing until after the disposition of the criminal charge.18 Most courts faced with the problem have concluded that it can be sufficiently resolved by granting use immunity at the later trial.19 In Melson v. Sard, 402 [997]*997F.2d 653 (D.C.Cir.1968), the court viewed petitioner’s “dilemma of whether to testify at the revocation hearing and seek his release, but risk uttering incriminatory statements that could be used against him at his criminal trial,” Id. at 654, as posing an issue of competing constitutional values:
“We think the solution lies in establishing certain safeguards by which the parolee’s dilemma is lessened at the revocation hearing. We feel that the parolee’s most significant handicap — the fear of self-incrimination — can readily be eliminated. . . . Accordingly, we hold that any self-incriminatory statements made in a parole revocation hearing shall not be used affirmatively against the parolee in any subsequent criminal proceeding.” [footnotes omitted]
Id. at 655.
Similarly, the Coleman court fashioned an exclusionary rule whereby “upon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges . . .” 120 Cal.Rptr. at 402, 533 P.2d at 1042. In State v. DeLomba, 117 R.I. 673, 370 A.2d 1273 (1977), the Rhode Island supreme court, relying in part on Coleman, adopted the requirement of either a grant of use and derivative use immunity for testimony given at a probation revocation hearing, or postponement of the revocation proceeding until after the criminal trial, on the reasoning that “the unfairness of the current practice, even if not so severe as to rise to the level of a constitutional deprivation, is nevertheless so real and substantial that it calls for action by us on public policy grounds and in furtherance of our responsibility to assure a sound and enlightened administration of justice.” Id. at 1275.
It is true, as petitioner asserts, that, despite a grant of use immunity, he may necessarily have to divulge his defense strategy at a revocation hearing held prior to the criminal trial. For this reason we agree with the California supreme court that “the most desirable method of handling the problems of concurrent criminal and probation revocation proceedings may well be for revocation proceedings not even to be initiated until after disposition of the related criminal proceedings.” 120 Cal. Rptr. at 406, 533 P.2d at 1046.20 The state’s interest in initiating prompt revocation proceedings upon the occurrence of a criminal offense cannot be ignored, however. We think use and derivative use immunity can adequately protect the parolee at a revocation hearing from infringement of his constitutional rights without sacrifice to the state’s interest.
We are persuaded by the approach adopted in Coleman and DeLomba. In the interests of fairness, a parolee should not be forced to choose between remaining mute at a revocation proceeding, thereby surrendering his right to present a defense, or [998]*998testifying at the revocation hearing and incurring the possibility of incriminating himself. In the exercise of our inherent supervisory powers over the administration of justice by courts of this state,21 we hold that where a parolee is faced with both revocation and a criminal trial based upon the same conduct, upon timely objection any evidence22 or testimony presented by the parolee at a revocation hearing is inadmissible by the state in subsequent criminal proceedings. This exclusionary rule applies equally to the fruits of the parolee’s prior revocation hearing,23 “in order to remove completely any illegitimate incentive to schedule revocation hearings in advance of trial.” People v. Coleman, 120 Cal.Rptr. at 403, 533 P.2d at 1043. We also hold that the parolee must be advised prior to revocation proceedings that any evidence or testimony offered by him at the revocation proceedings may not be admitted against him at a subsequent trial on the underlying offense.
In the present case, petitioner was informed by the superior court that he would be given immunity at subsequent criminal proceedings for any testimony offered at the revocation hearing. Despite this grant of immunity, McCracken’s attorney explained, through affidavit, that he did not advise his client to present a defense at the revocation hearing because he “anticipated that the District Attorney prosecuting Mr. McCracken would have access to all information which may be presented and would have utilized all of such information in preparing for trial of the felony case.” Thus, McCracken’s reluctance to present a defense was primarily based on his assumption that the court’s order did not extend to the fruits of any testimony he presented at the revocation hearing.
The Supreme Court has expressed concern that a witness who has been granted immunity “not be required to answer a question if there is some rational basis for believing that it will incriminate him . .” Maness v. Meyers, 419 U.S. 449, 473, 95 S.Ct. 584, 598, 42 L.Ed.2d 574, 592 (1975) (White, J., concurring). And in Stevens v. Marks, 383 U.S. 234, 246, 86 S.Ct. 788, 794, 15 L.Ed.2d 724, 732-33 (1966), the Court stated:
“A witness has, we think, a constitutional right to stand on the privilege against self-incrimination until it has been fairly demonstrated to him that an immunity, as broad in scope as the privilege it replaces, is available and applicable to him.” [footnote omitted]
See also Baxter v. Palmigiano, 425 U.S. 308, 335 n.8, 96 S.Ct. 1551, 1566 n.8, 47 L.Ed.2d [999]*999810, 832 n.8 (1976) (Brennan, J., joined by Marshall, J., concurring & dissenting).
Although the superior court’s order clearly states that “any testimony given on behalf of the defense” [emphasis added] could not be used against the defendant “in anyway, whatsoever,” we do not think that this clearly demonstrated to McCracken that the fruits of any evidence or testimony presented by him at the revocation hearing could not be used at a later trial. Had McCracken had full knowledge and awareness of the immunity required by this opinion, we cannot help but think that he would have conducted a far more adequate defense at the revocation hearing. Since we find that petitioner had a rational basis for being unsure of the degree of protection the court’s grant of immunity would actually afford him at his subsequent criminal trial, we reverse and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.