United States v. Shotwell Mfg. Co., 355 U.S. 233 (1957)

Dissenting opinion of MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS concur, announced by MR. JUSTICE DOUGLAS.

By remanding this case so that the Government can introduce additional evidence to save the conviction thrown out by the Court of Appeals, I think the Court takes unnecessary and unprecedented action which may have far-reaching and unfortunate ramifications not yet clearly foreseen. I would deny certiorari, and thus permit the case in its regular course to go back to the District Court for a new trial pursuant to the decision of the Court of Appeals. At this trial, the Government could introduce any evidence which it now has, new or otherwise, and a full hearing could be had on its charges of perjury and fraud.

The Court of Appeals held that defendants’ incriminating disclosures were secured by promises of immunity made by various government officials, and that such disclosures could not be used to convict defendants because of their privilege against self-incrimination under the Fifth Amendment. Now this Court sends the case back to the District Court to hear new evidence and make new findings with respect to whether defendants’ disclosures were made in good faith and in full accordance with certain vague conditions attached to the offers of immunity.{1} The majority asserts that it is not ruling on the merits of the defendants’ Fifth Amendment claims, but it seems to me a vain and wasteful act for the majority to return the case to the District Court for these supplemental proceedings unless it assumes that neither the Fifth Amendment nor any rule of evidence in the federal courts bars the use of incriminating admissions induced by promises of immunity where the disclosures are not made with pure motives. If we are going to concern ourselves with the case at all, I believe we should at least give full consideration to the legal problems involved in defendants’ requests for suppression before remanding the case for any further proceedings.

I think the Fifth Amendment questions raised here are important, unsettled, and not susceptible to off-hand resolution, particularly with respect to incriminating evidence which the defendants actually turned over to the Government in hope of securing immunity from prosecution. In Bram v. United States, 168 U.S. 532, 542-543, the Court referred with approval to the rule that

. . . a confession, in order to be admissible, must be free and voluntary -- that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . . A confession can never be received in evidence where the prisoner has been influenced by any threat or promise, for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.

(Emphasis supplied.)

In accord with this statement, it appears to have been generally assumed in this Court that the Fifth Amendment bars the use against a defendant in a criminal prosecution of confessions or admissions secured from him by promises of immunity. See, e.g., Hardy v. United States, 186 U.S. 224, 229; Ziang Sung Wan v. United States, 266 U.S. 1, 14; Smith v. United States, 348 U.S. 147, 150. And so far as I can tell, this Court has never considered whether lack of good faith deprives a suspect of the Fifth Amendment’s protection when he makes disclosures under a promise of immunity, or under just what circumstances and to what extent this might be true. I do not mean to intimate any view on the merits of this problem now, but I do register a protest against the manner in which the majority disposes of the case.

I believe the majority has also disregarded another significant and crucial consideration -- the role of the jury in passing on the admissibility of defendants’ disclosures. In Wilson v. United States, 162 U.S. 613, 624, the Court laid down a rule which it has never questioned:

When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury, with the direction that they should reject the confession if, upon the whole evidence, they are satisfied it was not the voluntary act of the defendant.

Just recently, in Smith v. United States, 348 U.S. 147, 151, the Court stated that the question of voluntariness was properly left to the jury where a taxpayer claimed he had made certain disclosures on the strength of promises of immunity by revenue officers. Cf. Kent v. Porto Rico, 207 U.S. 113, 118-119.

In the lower federal courts, there seems to be considerable difference of opinion as to whether the Wilson case makes it mandatory that the jury participate in the process of determining whether a confession is voluntary, or whether the jury’s participation is a matter of discretion with the trial judge.{2} E.g., compare United States v. Leviton, 193 F.2d 848, 852, certiorari denied, 343 U.S. 946, with Lewis v. United States, 74 F.2d 173, 178-179. In at least the District of Columbia Circuit, the rule appears to be settled that the trial judge must submit the question of voluntariness to the jury for its independent determination. McAffee v. United States, 70 App.D.C. 142, 105 F.2d 21. In the States, a number of different methods of allocating the burden of determining the voluntariness of a confession between the judge and jury have been followed, but the trend seems to be that the judge should determine voluntariness in the first instance, and, if he finds that the confession is voluntary, then should submit the case to the jury with instructions not to consider the confession as evidence unless they also find it voluntary. As a matter of fact, the Court in Wilson relied on state cases which had laid down this so-called "humane" rule. I myself favor such a rule, which is particularly beneficial where, as here, the question of admissibility turns to a large extent on the credibility of witnesses.

I think that the principles established in Wilson and subsequent cases clearly apply to the questions of admissibility raised in this case. Under these principles, the trial judge at a minimum, has the option of submitting such questions to the jury. But the majority’s disposition of this case precludes that possibility at the partial new trial which it orders. It attempts to avoid this infirmity by saying,

the Government’s new showing does not relate to an issue submitted to the jury in the proceedings below, but rather to a preliminary question as to the admissibility of evidence.

And it continues,

Respondents did not urge below, nor do they suggest here, that the question of admissibility of the disputed evidence was properly an issue for the jury.

But these answers are obviously inadequate. We are not concerned with what has happened or what was urged, but with how this case will be handled in the future. If the new trial ordered by the Court of Appeals had been allowed to stand, the defendants would not have been barred from demanding that the question of admissibility be submitted to the jury just, because they had not made a similar request at the first trial or on appeal.

The Court now gives the Government an opportunity to introduce new evidence in an attempt to save a conviction it has lost in the Court of Appeals. If this does not technically infringe the protection against double jeopardy, it seems to me to violate its spirit. Cf. Green v. United States, 355 U.S. 184; Kepner v. United States, 195 U.S. 100, 128-129. In fact, it is even worse in some respects. Only the Government stands to benefit from this partial new trial, while the defendants must fight to keep what they already have. Not a single case has been referred to or discovered where defendants have been subjected to such piecemeal prosecution.{3} To my knowledge, it is a new idea that the Government can supplement a trial record in order to retain a conviction which an appellate court would otherwise reverse.

Both the Government and the Court concede that the action taken here is extraordinary, but such disposition is justified on the ground this is an exceptional case which called for extraordinary action. I do not agree. In essence, all the Government proposes to do on remand is to impeach the testimony of certain witnesses for both sides with alleged newly discovered evidence. No witness has recanted, nor do the defendants concede that their testimony was false. If the Government can partially reopen a case to impeach witnesses, what rational basis is there for denying it a similar right in any case when new facts appear which persuasively suggest that it could strengthen its evidence in order to save a conviction on appeal? This possibility emphasizes the anomalous nature of what is done here.

The Court proceeds on the assumption that it would be improper for us to review the suppression question on a record which might contain materially false testimony, and that it is better, although concededly unique, to send the case back for more evidence on that issue. But there is no need to resort to either undesirable alternative. As I stated in the beginning, the case should simply be left alone, and allowed to go back for a new trial. There, the Government can offer all the evidence it has or can secure, so that a new record can be made on the suppression issue. In my judgment, it cannot seriously be contended that the Government would be barred from introducing evidence on that issue at a new trial. While it is true that the Court of Appeals ordered the disclosures suppressed, on the evidence in the record then before it, such ruling should not be construed as binding at a new trial where substantial newly discovered evidence is available. Cf. Aetna Life Ins. Co. v. Wharton, 63 F.2d 378; City of Sedalia ex rel. Ferguson v. Shell Petroleum Corp., 81 F.2d 193. If need be -- and I think not -- this Court could vacate the judgment of the Court of Appeals to the extent necessary to allow the Government a de novo hearing on the suppression issue at the new trial. 28 U.S.C. § 2106. This would do full justice as far as the charges of tax evasion are concerned, and, if perjury has been committed, it can be prosecuted as a separate crime.

I think this case is a dangerous precedent which should not be launched needlessly into the stream of the law.

1.

We are not concerned with the motivating force behind an individual’s deciding to come in and talk to us about his evasion. If he "gets religion" before we have done anything, he will not be prosecuted.

Treasury Press Release, May 14, 1947.

2. The entire subject is annotated in great detail at 170 A.L.R. 567. Also see 85 A.L.R. 870.

3. Neither Mesarosh v. United States, 352 U.S. 1, nor Communist Party v. Subversive Activities Control Bd., 351 U.S. 115, serves as any authority for the Court’s action. In the Mesarosh case, the Government had secured a conviction which had been upheld by the Court of Appeals. In this Court, the Government came forward with evidence that one of its principal witnesses at the trial had committed perjury, and the Court reversed the conviction and remanded the case for a full new trial. Here, the United States has lost a conviction in the Court of Appeals. It now asks us to send the base back to the trial court so that it can introduce additional evidence in an attempt to salvage the reversed conviction. The difference between the two cases is manifest, and crucial.

In the Communist Party case, administrative findings were challenged, and this Court remanded the case to the agency so that it might consider the record free of any perjurious testimony by government witnesses. The administrative proceeding there can hardly be equated with the criminal prosecution involved here. Moreover, in both the Mesarosh and Communist Party cases, the Court’s action operated to protect the rights of defendants, not, as here, to aid the Government. In view of our traditional methods of criminal justice, this difference is not without importance.