New Jersey v. Portash

440 U.S. 450, 99 S. Ct. 1292, 59 L. Ed. 2d 501, 1979 U.S. LEXIS 73

• Court: Supreme Court of the United States
• Decided: March 20, 1979
• Docket: 77-1489
• Status: Published

Opinions

Mr. Justice Stewart

delivered the opinion of the Court.

This case involves the scope of the privilege against compulsory self-incrimination, grounded in the Fifth Amendment and made binding against the States by the Fourteenth. The precise question is whether, despite this constitutional privilege, a prosecutor may use a person’s legislatively immunized grand jury testimony to impeach his credibility as a testifying defendant in a criminal trial.

I

In the early 1970’s, Joseph Portash was Mayor of Manchester Township, Executive Director of the Pinelands Environmental Council, and a member of both the Ocean County Board of Freeholders and the Manchester Municipal Utilities Authority in New Jersey. In November 1974, after a lengthy investigation, a state grand jury subpoenaed Portash. He expressed an intention to claim his privilege against compulsory self-incrimination. The prosecutors and Portash’s lawyers then agreed that, if Portash testified before the grand jury, neither his statements nor any evidence derived from them could, under New Jersey law, be used in subsequent criminal proceedings (except in prosecutions for perjury or false swearing) ,¹ After Portash’s testimony, the parties tried to come to an agreement to avoid a criminal prosecution against Portash, but no bargain was reached. In April 1975, Portash was indicted for misconduct in office and extortion by a public official.²

Before trial, defense counsel sought to obtain a ruling from the trial judge that no use of the immunized grand jury testimony would be permitted. The judge refused to rule that the prosecution could not use this testimony for purposes of impeachment. After the completion of the State’s case, defense counsel renewed his request for a ruling by the trial judge as to the use of the grand jury testimony. There followed an extended colloquy, and the judge finally ruled that if Portash testified and gave an answer on direct or cross-examination which was materially inconsistent with his grand jury testimony, the prosecutor could use that testimony in his cross-examination of Portash. Defense counsel then stated that, because of this ruling, he would advise his client not to take the stand. Portash did not testify, and the jury ultimately found him guilty on one of the two counts.

The New Jersey Appellate Division reversed the conviction. 151 N. J. Super. 200, 376 A. 2d 950 .(1977). That court held that the Constitution requires that the immunity granted by the New Jersey statute must be at least coextensive with the privilege afforded by the Fifth and Fourteenth Amendments. To confer such protection, the court reasoned, the grant of immunity must “leave defendant and the State in the position each would have occupied had defendant’s claim of privilege [before the grand jury] been honored.” Id., at 205, 376 A. 2d, at 953. Use of the immunized grand jury testimony to impeach a defendant at his trial, it held, did not meet this test. Because Portash’s decision not to testify was based upon the trial court’s erroneous ruling to the contrary, the Appellate Division reversed the conviction and remanded the case for a new trial.³ The New Jersey Supreme Court denied the State’s petition for certification of an appeal. 75 N. J. 597, 384 A. 2d 827 (1978). We granted certiorari. 436 U. S. 955.

II

New Jersey presents two questions. First, it argues that Portash cannot properly invoke the privilege against compulsory incrimination because he did not take the witness stand and, as a result, his immunized grand jury testimony was never used against him. Second, it urges that the Fifth and Fourteenth Amendments do not prohibit the use of immunized grand jury testimony to impeach materially inconsistent statements made at trial.

A

The State contends that the issue presented by Portash is abstract and hypothetical because he did not, in fact, become a witness. Portash could have taken the stand, testified, objected to the prosecution’s use of the immunized testimony to impeach him, and appealed any subsequent conviction. Absent that, the State would have us hold that the constitutional question was not and is not presented. This argument must be rejected. First, it is clear that although the trial judge was concerned about making a ruling before specific questions were asked, he did rule on the merits of the constitutional question:

“THE COURT: Well, this is what the Court was concerned with and still is and I thought the Court had straightened it out previously, the witness taking the stand and testifying as to something and then have counsel saying didn’t you say before the grand jury such and such.

“MR. WILBERT [defense counsel]: That’s the problem that we have. We don’t know whether he’s going to be able to use that or not, your Honor, especially if he didn’t touch that area in his examination—

“THE COURT: Mr. Wilbert, suppose your client takes the stand and he testifies that I worked for Donald Safran and suppose he testified before the grand jury I never worked for Donald Safran?

“MR. WILBERT: Inconsistency and under your Honor’s ruling that can be used in this case.

“THE COURT: No doubt about it.

“MR. WILBERT: Your Honor, I would submit it could be used over my objection, of course.

“THE COURT: You have a standing objection with respect to the use at all of the grand jury testimony.” (Emphasis added.) App. 223a.

Second, the New Jersey appellate court necessarily concluded that the federal constitutional question had been properly presented, because it ruled in Portash’s favor on the merits.⁴ See Raley v. Ohio, 360 U. S. 423, 435-437; cf. Jenkins v. Georgia, 418 U. S. 153, 157; Coleman v. Alabama, 377 U. S. 129, 133; Whitney v. California, 274 U. S. 357, 360-361; Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123, 134.

Moreover, there is nothing in federal law to prohibit New Jersey from following such a procedure, or, so long as the “case or controversy” requirement of Art. Ill is met, to foreclose our consideration of the substantive constitutional issue now that the New Jersey courts have decided it. This is made clear by a case decided by this Court in 1972, Brooks v. Tennessee, 406 U. S. 605. There the Court held unconstitutional a Tennessee statutory requirement that a defendant in a criminal case had to be his own first witness if he was to take the stand at all. The Court held that such a requirement unconstitutionally penalized a defendant’s right to remain silent, since a defendant could remain silent immediately after the close of the State’s case only at the cost of never testifying in his own defense. Although Brooks had not testified, the Tennessee court considered the constitutional validity of the state statute, and so did this Court. Because the rule imposed a penalty on the right to remain silent, the Court found that his constitutional rights had been infringed even though he had never taken the stand. Id., at 611 n. 6.

In Brooks the Court held that the defendant’s Fifth and Fourteenth Amendment rights had been violated because, in order to assert his Fifth Amendment right to remain silent after the prosecution’s case in chief had been presented, the defendant would have had to pay a penalty. He could never testify. Here, as in Brooks, federal law does not insist that New Jersey was wrong in not requiring Portash to take the witness stand in order to raise his constitutional claim.⁵

B

In both Great Britain and in what later became the United States, immunity statutes, like the privilege against compulsory self-incrimination, predate the adoption of the Constitution. Kastigar v. United States, 406 U. S. 441, 445 n. 13, 446 n. 14. This Court first considered a constitutional challenge to an immunity statute in Counselman v. Hitchcock, 142 U. S. 547. The witness in that case had refused to testify before a federal grand jury in spite of a grant of immunity under the relevant federal statute. The Court overturned his contempt conviction. It construed the statute to permit the use of evidence derived from his immunized testimony. The witness was held to have validly asserted his privilege because “legislation cannot abridge a constitutional privilege, and . . . it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect.” Id., at 585. See also Brown v. United States, 359 U. S. 41; Ullmann v. United States, 350 U. S. 422; Brown v. Walker, 161 U. S. 591. After the holding in Malloy v. Hogan, 378 U. S. 1, that the Fifth Amendment privilege against compulsory self-incrimination is also contained in the Fourteenth Amendment, this rule is necessarily applicable to state immunity statutes as well. Cf. Murphy v. Waterfront Comm’n, 378 U. S. 52.⁶

Language in Counselman and its progeny was read by some to require that the witness must be immune from prosecution for the transaction his testimony concerned. Indeed, the federal statutes subsequently upheld by the Court granted such transactional immunity. Brown v. United States, supra; Ullman v. United States, supra; Heike v. United States, 227 U. S. 131; Brown v. Walker, supra.7 The adoption of Pub. L. 91-452 in 1970 marked a change in federal immunity legislation from the provision of transactional immunity to the provision of what is known as “use” immunity. 18 U. S. C §§ 6001, 6002. This immunity, similar to that provided by the New Jersey statute in this case, protects the witness from the use of his compelled testimony and any information derived from it. In Kastigar v. United States, supra, the Court upheld that statute against a challenge that mere use immunity is not coextensive with the Fifth Amendment’s privilege.

“The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being 'forced to give testimony leading to the infliction of “penalties affixed to . . . criminal acts.” ’ Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.” 406 U. S., at 453. (Emphasis in original; footnote omitted.)

Against this broad statement of the necessary constitutional scope of testimonial immunity, the State asks us to weigh Harris v. New York, 401 U. S. 222, and Oregon v. Hass, 420 U. S. 714.⁸ Those cases involved the use of statements, con-cededly taken in violation of Miranda v. Arizona, 384 U. S. 436, to impeach a defendant’s testimony at trial. In both eases the Court weighed the incremental deterrence of police illegality against the strong policy against countenancing perjury. In the balance, use of the incriminating statements for impeachment purposes prevailed. The State asks that we apply the same reasoning to this case. It points out that the interest in preventing perjury is just as strongly involved, and that the statements made to the grand jury are at least as reliable as those made by the defendants in Harris and Hass.

But the State has overlooked a crucial distinction between those cases and this one. In Harris and Hass the Court expressly noted that the defendant made “no claim that the statements made to the police were coerced or involuntary,” Harris v. New York, supra, at 224; Oregon v. Hass, supra, at . That recognition was central to the decisions in those cases.

The Fifth and the Fourteenth Amendments provide that no person “shall be compelled in any criminal case to be a witness against himself.” As we reaffirmed last Term, a defendant’s compelled statements, as opposed to statements taken in violation of Miranda, may not be put to any testimonial use whatever against him in a criminal trial. “But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law.” (Emphasis in original.) Mincey v. Arizona, 437 U. S. 385, 398.⁹

Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant’s will; the witness is told to talk or face the government’s coercive sanctions, notably, a conviction for contempt. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled. The Fifth and Fourteenth Amendments provide a privilege against compelled self-incrimination, not merely against unreliable self-incrimination. Balancing of interests was thought to be necessary in Harris and Hass when the attempt to deter unlawful police conduct collided with the need to prevent perjury. Here, by contrast, we deal with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing, therefore, is not simply unnecessary. It is impermissible.

The Superior Court of New Jersey, Appellate Division, correctly ruled that a person’s testimony before a grand jury under a grant of immunity cannot constitutionally be used to impeach him when he is a defendant in a later criminal trial.¹⁰ Accordingly, the judgment is affirmed.

It is so ordered.

1 At that time a New Jersey statute provided as follows:

“If any public employee testifies before any court, grand jury or the State Commission of Investigation, such testimony and the- evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State; provided that no such public employee shall be exempt from prosecution or punishment for perjury committed while so testifying.” New Jersey Public Employees Immunity Statute, N. J. Stat. Ann. § 2A:81-17.2a2 (West 1976).

2 Portash has not contended that the indictment was based on information disclosed by or “derived” from his immunized testimony. Before trial he did move for dismissal of the indictment on two grounds. First, he argued that the course of dealings between himself and the prosecution established an agreement that he would not be prosecuted so long as he cooperated with the State. Second, he contended that he had impermis-sibly been forced to incriminate himself by providing certain employment records to the grand jury. The trial court rejected both arguments; neither is urged here.

3 We read the state-court opinion as resting its judgment unambiguously and exclusively on the Federal Constitution. The court said:

“The immunity device, however, will only be deemed a sufficient answer to a claim of privilege if the scope of immunity afforded is commensurate in all respects with the privilege against self-incrimination which it replaces. United. States v. Calandra, 414 U. S. 338, 346 . . . (1974); Kastigar v. United States, 406 U. S. 441, 459 . . . (1972).” 151 N. J. Super., at 205, 376 A. 2d, at 953.

Both Calandra and Kastigar were, of course, federal constitutional decisions. The court discussed several other federal cases in the course of its opinion, and nowhere indicated any reliance on principles of state constitutional or common law.

4 Lefkowitz v. Newsome, 420 U. S. 283, was another case where provisions of state law allowed federal review that may not otherwise have been available. There, New York law allowed a defendant to appeal defeat of a motion to suppress even though he later pleaded guilty. The Court held that because the State recognized such a procedure, a state prisoner who had pleaded guilty could assert his Fourth and Fourteenth Amendment claim in a federal habeas corpus proceeding, even though federal habeas corpus relief would not generally have been available to one who had pleaded guilty.

5 A similar situation existed in Wardius v. Oregon, 412 U. S. 470. The Court held in that case that state notice-of-alibi requirements could be enforced only if the State provided reciprocal discovery rights for the defendant. The defendant in that case had not given a notice of alibi. The State argued that he could not assert his constitutional claim, because he should have given his notice of alibi and then argued that the State had to grant him reciprocal discovery. The Court rejected that argument, and held that he need not give notice to raise his constitutional claim.

6 The Murphy ease dealt with the problem of dual sovereignty. The issue was whether a State could grant constitutionally sufficient immunity if another jurisdiction could use the immunized testimony in a prosecution. The Court proceeded on the premise that a State is required to provide at least use immunity, and held that such immunity would have to be honored by the Federal Government. See Kastigar v. United States, 406 U. S. 441, 455-459.

7 See Shapiro v. United States, 335 U. S. 1, 6 n. 4, for a list of the federal statutes that provided transactional immunity.

8 The Court in both the Harris and Hass cases relied on Walder v. United States, 347 U. S. 62, a case in which the Court held that the Fourth Amendment’s exclusionary rule does not prevent the use of unconstitutionally seized evidence to impeach a defendant’s credibility.

9 We express no view as to whether possibly truthful immunized testimony may be used in a subsequent false-declarations prosecution premised on an inconsistency between that testimony and later, nonimmunized, testimony. That question will be presented in Dunn v. United States, No. 77-6949, cert. granted, 439 U. S. 1045.

10 There is discussion in the briefs of the parties regarding the admissibility of statements made by Portash during pre-indictment negotiations with the state prosecutors. We do not understand the opinion of the state appellate court to have dealt with this issue, and nothing said in this opinion bears on it.