Regan v. New York, 349 U.S. 58 (1955)

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs, dissenting.

In order to keep his job as a New York City policeman, petitioner signed a paper waiving immunity he would otherwise have had from prosecution under state law as to matters he might testify about before a grand jury. Twenty-two months later, long after he had resigned as a policeman, he was brought before a county grand jury. He was asked whether he had ever accepted bribes while he was a policeman. Acceptance of bribes is a New York felony punishable by ten years’ imprisonment. Petitioner refused to answer the questions, claiming a federal constitutional and state privilege against self-incrimination. For refusal to answer, he was sentenced to twelve months in prison. The Court holds that New York can thus imprison petitioner "for his refusal to provide such self-incriminatory testimony." I do not agree that New York can do this consistently with the Federal Constitution.

For reasons stated on other occasions, I believe the Fourteenth Amendment makes the Fifth Amendment applicable to the States. See, e.g., Adamson v. California, 332 U.S. 46, 68. And the Fifth Amendment accords an unqualified privilege to persons to be silent when asked questions answers to which would make those persons witnesses against themselves. See, e.g., Blau v. United States, 340 U.S. 159, 161. Even under the other view of the Fourteenth Amendment, that it does not make the Fifth Amendment applicable to the States and that, under some circumstances, States may compel persons to testify against themselves, this Court has held many times that a State may not convict a person on testimony it coerced from him. E.g., Leyra v. Denno, 347 U.S. 556, 558; Ashcraft v. Tennessee, 322 U.S. 143, 155; cf. Rochin v. California, 342 U.S. 165. Coercing testimony for that purpose is equally obnoxious to the Fourteenth Amendment. However its action is described, the State is seeking to coerce this petitioner to give testimony to help bring about his conviction for crime. For it is certainly coercion to throw a man into jail unless he agrees to testify against himself.

The Court approves the dilemma in which New York places petitioner. He must give evidence which might convict him of a felony or go to jail for refusing to give that evidence. The Court says, however, that petitioner’s dilemma is "simply the result of a voluntary choice to waive an immunity provided by the State." There, of course, may be some doubt as to how "voluntary" this "choice" was. In any event, it is a completely novel idea that a waiver device of this kind can destroy constitutional protections. It is nothing more nor less than a wholesale blanket agreement that a person will not claim a constitutional privilege with reference to anything he has ever done in the past or that he may do in the future in connection with his job. So far as I know, it has never been held before that the privilege against self-incrimination or any other Bill of Rights safeguard can be bargained away far in advance of the day when needed as protection against the overreaching power of government.

The Court’s holding appears to approve a dangerous technique whereby both State and Federal Governments can compel people to convict themselves out of their own mouths. Are we to infer that the Federal Government is now free to compel its millions of employees permanently to waive their privilege against self-incrimination or lose their jobs? Surely private employers are not now free to compel their employees to waive this and other constitutional privileges. This might be highly satisfactory to those who believe that the privilege against compulsory self-incrimination has no proper place in our Bill of Rights. But that provision was designed as a continuing rigid safeguard against ruthless exercise of governmental power.

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I would like to venture the suggestion that the privilege against self-incrimination is one of the great landmarks in man’s struggle to make himself civilized. As I have already pointed out, the establishment of the privilege is closely linked historically with the abolition of torture. Now we look upon torture with abhorrence. B ut torture was once used by honest and conscientious public servants as a means of obtaining information about crimes which could not otherwise be disclosed. We want none of that today, I am sure. . . .

If a man has done wrong, he should be punished. But the evidence against him should be produced, and evaluated by a proper court in a fair trial. Neither torture nor an oath nor the threat of punishment such as imprisonment for contempt should be used to compel him to provide the evidence to accuse or to convict himself.

Griswold, The Fifth Amendment Today, 7-8.