California v. Byers, 402 U.S. 424 (1971)

Author: Justice Harlan

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California v. Byers, 402 U.S. 424 (1971)

MR. JUSTICE HARLAN, concurring in the judgment.

For the reasons which follow, I concur in the judgment of the Court.


The respondent, Byers, as a driver of a vehicle involved in an accident resulting in property damage, was charged in a two-count complaint with overtaking another vehicle in a manner proscribed by § 21750 of the California Vehicle Code (Supp. 1971) and failing to comply with the requirements of § 20002(a) of the California Vehicle Code (Supp. 1971).{1} The parties have stipulated that the accident was caused by respondent’s violation of § 21750 of the California Vehicle Code. App. 36. The California Supreme Court has held that in circumstances where a driver involved in an accident has reason to believe his compliance with § 20002(a) creates a substantial risk of disclosure of incriminating evidence, the Fifth Amendment requires that the State must either excuse his noncompliance if he properly pleads the privilege against self-incrimination in a subsequent prosecution for failure to comply or forgo the use of any information disclosed by the State’s compulsion. Construing the state statute as wholly nonprosecutorial in purpose, the court then held that imposition of a restriction on the use of the information or its fruits in a subsequent criminal prosecution for the conduct causing the accident would be consistent with the state legislative purpose.

I cannot separate the requirement that the individual stop from the requirement that he identify himself for purposes of applying either the "testimonial -- non-testimonial" classification of Schmerber v. California, 384 U.S. 757 (1966), or the "substantial danger of incrimination" test of Hoffman v. United States, 341 U.S. 479 (1951). The California Supreme Court treated these requirements, in the primary context in which the statute operates, as compelling identification of oneself as a party involved in the statutorily regulated event. If evidence of that self-identification were admitted at trial, it would certainly be "testimonial." If all that is offered at trial is the identification evidence of third-party witnesses, it still does not follow from United States v. Wade, 388 U.S. 218 (1967), that, because the policies of the Fifth Amendment are not significantly affected by state compulsion to cooperate in the production of real evidence where the State has independently focused investigation on the defendant, these policies are similarly unaffected where the State in pursuit of "real" evidence -- demands of the defendant that he focus the investigation on himself. See generally Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government’s Need for Information, 1966 Sup.Ct.Rev. 103, 121-124.

It may be said that requiring the defendant to focus attention on himself as an accident participant is not equivalent to requiring the defendant to focus attention on himself as a criminal suspect. And that proposition raises the underlying issue which we must resolve in this case: how do the various verbal formulations for assessing the legal significance of the risk of incrimination, developed by the Court primarily in the context of the criminal process, see Malloy v. Hogan, 378 U.S. 1, 11-14 (1964); Hoffman v. United States, 341 U.S. 479 (1951), operate in the context of the state collection of data for purposes essentially unrelated to criminal prosecution?


The California Supreme Court in the present case resolved that issue as follows:

Decisions of the United States Supreme Court make clear that the privilege against self-incrimination is a personal one, and that whether the government may require a disclosure depends upon the facts of each case. Invocation of the privilege is not limited to situations in which the purpose of the inquiry is to get an incriminating answer. It is the effect of the answer that is determinative.

To sustain [a claim of] privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.

[Citing Hoffman, supra, and Mansfield, supra.] Byers v. Justice Court, 71 Cal.2d 1039, 1046, 458 P.2d 465, 470 (1969) (emphasis in original).

The California Supreme Court was surely correct in considering that the decisions of this Court have made it clear that invocation of the privilege is not limited to situations where the purpose of the inquiry is to get an incriminating answer. For example, in the context of civil proceedings, the privilege is generally available to witnesses as long as a substantial risk of self-incrimination can be made out by the witness. See McCarthy v. Arndstein, 266 U.S. 34 (1924); Murphy v. Waterfront Comm’n, 378 U.S. 52, 94 (1964) (WHITE, J., concurring). And, in fairness to the state tribunal whose decision we are reviewing, it must be recognized that a reading of our more recent cases -- especially Marchetti v. United States, 390 U.S. 39 (1968), and Grosso v. United States, 390 U.S. 62 (1968) -- suggests the conclusion that the applicability of the privilege depends exclusively on a determination that, from the individual’s point of view, there are "real" and not "imaginary" risks of self-incrimination in yielding to state compulsion. Thus, Marchetti and Grosso (and the cases they overruled, United States v. Kahner, 345 U.S. 22 (1953), and Lewis v. United States, 348 U.S. 419 (1955)), start from an assumption of a nonprosecutorial governmental purpose in the decision to tax gambling revenue; those cases go on to apply what, in another context, I have called the "real danger v. imaginary possibility" standard, see Emspak v. United States, 349 U.S. 190, 209 n. 1 (1955), to the gambling reporting requirements imposed on the individual in order to determine the constitutionality of those requirements. See Marchetti v. United States, supra, at 48-54; Grosso v. United States, supra, at 66-67. A judicial tribunal whose position with respect to the elaboration of constitutional doctrine is subordinate to that of this Court certainly cannot be faulted for reading these opinions as indicating that the "inherently suspect class" factor is relevant only as an indicium of genuine incriminating risk as assessed from the individual’s point of view. See also Haynes v. United States, 390 U.S. 85, 95-98 (1968); Leary v. United States, 395 U.S. 6, 16-18 (1969); and compare the dissenting opinion of Mr. Justice Frankfurter in the Kahriger case, supra.

That inference from our past cases was the central premise of the California Supreme Court’s opinion. See Byers v. Justice Court, supra, at 1042-1043, 458 P.2d at 468. Thus, that tribunal is in agreement with the conclusion reached in today’s opinion of THE CHIEF JUSTICE that the class of accident participants is not an "inherently suspect" class within the meaning of Marchetti, Grosso, and Haynes. But the state court went on to conclude that the widespread prevalence of criminal sanctions as a means of regulating driving conduct cast a substantial shadow of suspicion over the class, and that this circumstance plus the driver’s awareness that his illegal behavior caused the accident rendered the driver’s conclusion that he would incriminate himself by complying with the statute sufficiently plausible to support an assertion of the privilege. Id. at 1045-1046, 458 P.2d at 470. Starting from the California Supreme Court’s premise and looking at our cases defining the test for risks of incrimination, see Malloy v. Hogan, 378 U.S. at 11-14; Hoffman v. United States, 341 U.S. 479 (1951); Rogers v. United States, 340 U.S. 367, 374 (1951); Brown v. Walker, 161 U.S. 591 (1896), I would have to reach the same conclusion. I am, however, for the reasons stated in the remainder of this opinion, constrained to hold that the presence of a "real" and not "imaginary" risk of self-incrimination is not a sufficient predicate for extending the privilege against self-incrimination to regulatory schemes of the character involved in this case.


First, it is instructive to consider the implications of adhering to the premise which the California Supreme Court drew from our prior cases. In United States v. Sullivan, 274 U.S. 259 (1927), Mr. Justice Holmes stated his view that

[i]t would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime.

Id. at 263-264.{2} Yet -- at least for an individual whose income is largely or entirely derived from illegal activities -- it is, I think, manifestly unsatisfactory to maintain that it should be

"perfectly clear [to him], from a careful consideration of all the circumstances in the case [that his statement of the amount of his income] cannot possibly have [a] tendency" to incriminate.

Hoffman v. United States, 341 U.S. at 488. (Emphasis in original.) Certainly that individual would have good reason to suspect that, if the State is permitted to introduce his income tax return into evidence, the information contained therein, even if wholly confined to a statement of his gross income, will, when combined with other evidence derived from independent sources, incriminate him. United States v. Burr, 25 F.Cas. 38, 40 (No. 14,692e) (CC Va. 1807). Nor can the "required records" doctrine of Shapiro v. United States, 335 U.S. 1 (1948), be invoked to avoid that conclusion, for that doctrine, as applied to this situation, would simply mean that the taxing power is of sufficient import to justify compelled self-incrimination.

If Mr. Justice Holmes’ assertion that it would be an extreme, if not extravagant, extension of the Fifth Amendment to apply it in such a situation strikes a responsive chord, it is because the primary context from which the privilege emerges is that of the criminal process, both in the investigatory and trial phases. When applied in that context, the sole governmental interest that the privilege defeats is the enforcement of law through criminal sanctions. And, with regard to the witness’ privilege, the judge can, for the most part, draw the line between "real" and "imaginary" risks of incrimination in the marginal cases, thereby offsetting the tendency for the privilege to become an absolute right not to disclose any information at all.

But, of course, governmental interests other than the enforcement of criminal laws are affected by an extension of the privilege to all instances of governmental compulsion to disclose information. In the present case, the interests of the State of California in a system of personal financial responsibility for automobile accidents are implicated. Indeed, in my Brother BRENNAN’s view, the price which the State must pay for utilizing compulsory self-reporting to assure personal financial responsibility on the highways is to forgo use of the criminal sanction to regulate driving habits in all cases where the individual would be required to comply with § 20002.{3} And I emphasize that the logic of the Hoffman standard is such that the result cannot be said to turn on an empirical assumption that there is a lower correlation between criminal prosecutions and highway accidents than between criminal prosecutions and income disclosure. For if the privilege is truly a personal one, and the central standard is the presence of "real," as opposed to "imaginary," risks of self-incrimination, such general empirical differences can only function as evidentiary indicia in assessing the particular individual’s claim, in all the circumstances of his particular case, that, if he were to comply with the reporting requirement, he would run a genuine risk of incrimination. And, if the Hoffman standard is to be truly applied -- as opposed to indulging in a collection of artificial, if not disingenuous, judgments that the risks of incrimination are not there when they really are there -- we will have to recognize that in the absence of some sort of immunity grant the individual will be required to decide whether or not to comply without the guidance of a judicial decision as to how the standard applies to his personal situation. That means that the marginal cases should be resolved in the individual’s favor. What we are really talking about, then, is either a standard for risks of self-incrimination which protects all personal judgments which are not patently frivolous, or a grant of immunity potentially applicable to all instances of compelled "self-reporting." Of course, the California Supreme Court took the position that the permissible state objective in the reporting requirement and the constitutional values protected by the Fifth Amendment could be accommodated by imposing a restriction on prosecutorial use of the disclosed information and its fruits. See infra at 444-447. See generally McKay, Self-Incrimination and the New Privacy, 1967 Sup.Ct.Rev.193, 229-231; Mansfield, supra, at 163-166. But that accommodation leaves the Government’s capacity to utilize self-reporting schemes practically impaired by the necessary presumption that evidence used in a prosecution after the individual discloses his relationship to the regulated transaction would not have been available if the individual had not complied with the statute. In the context of "hit-and-run" statutes, a use immunity -- unless honored in the breach by consistent findings of "no taint" -- is likely to render doubtful the State’s ability to prosecute in a large class of cases where illegal driving has caused accidents. On the other hand, it would seem unlikely that the state legislature will accept the California Supreme Court’s invitation to override the use requirement if the legislative judgment is that the State’s ability to use the criminal sanction is too severely handicapped by a use restriction. See infra at 446-447. For the impact of a practically self-executing claim of privilege on the noncriminal objectives of the reporting requirement would be even more severe. Even under a use restriction, then, the choice open to the State is to forgo prosecution in at least a large number of accident cases involving illegal driving -- the precise situation where criminal sanctions are likely to be most appropriate -- or to forgo self-reporting in a large class of accident cases.

MR. JUSTICE BRENNAN argues that to draw this conclusion from the record in this case is to "flout" the conclusion of the California Supreme Court and the California Legislature that imposition of a use restriction as a condition for prosecuting Byers for noncompliance with § 20002(a) is "not at all inconsistent with the asserted state interests." Post at 476. Apparently my Brother BRENNAN maintains that imposition of a use restriction in the circumstances of this case will not, in fact, significantly interfere with the State’s ability to enforce criminal sanctions relating to driving behavior where that behavior culminates in an accident causing property damage.{4} That, in any event, seems to be the view he attributes to the California Supreme Court and the California Legislature. See opinion of MR. JUSTICE BRENNAN, post at 475-476 and n. 10.

But that is certainly not the position the California Supreme Court took, nor the position that court attributed to the state legislature. Thus, having first concluded that the Federal Constitution required recognition of an assertion of the privilege in all situations where the individual confront "real" and not "imaginary" risks of self-incrimination, the California Supreme Court set about the task of ascertaining the legislative preference between legislative goals which, by virtue of the imposition of a federal constitutional requirement, were placed in conflict:

Finally, it is instructive, in determining legislative intent, to consider an analogous field of legislation involving a similar conflict between requiring disclosures for noncriminal purposes and the privilege against self-incrimination. In the statutes requiring drivers involved in accidents resulting in personal injury or death to file accident reports, the Legislature has explicitly subordinated the state’s prosecutorial interest to the interest in obtaining the disclosure.

In the present case, there is no problem of conflicting state and federal interests; it is the state which both demands disclosure of information in "hit-and-run" accidents and prosecutes those who commit criminal acts on the highways. Imposing use restrictions in the present case merely involves this court in making a judgment, based on an assessment of probable legislative intent, that the Legislature would prefer to have the provisions of section 20002 of the Vehicle Code upheld even in cases involving possible criminal misconduct at the cost of some burden on prosecuting authorities in criminal cases arising out of or related to an accident covered by that section, rather than avoid that burden at the cost of significantly frustrating the important noncriminal objective of the legislation. Imposition of use restrictions in the present case will not preclude the Legislature from overriding our decision if it wishes by simply enacting legislation declaring that information derived from disclosures required by section 20002, subdivision (a), may be used in criminal prosecutions, in which case, the privilege could be claimed in appropriate situations.

There is another significant distinction between the circumstances in Marchetti and the circumstances in the present case. In Marchetti, the imposition of use restrictions on information obtained as a result of compliance with the federal wagering tax would have had a much more sweeping effect on state law enforcement than would the imposition of such restrictions here. It appears that most -- perhaps almost all -- violators of state criminal prohibitions against wagering and related activities are subject to the disclosure requirements of the federal wagering tax. (Marchetti v. United States, supra, 390 U.S. 39, 446, fns. 6.) Thus, the imposition of use restrictions in order to permit Congress to compel all wagerers to comply with the wagering tax law would have meant that, in almost all state prosecutions for wagering or related illegal activities, the state would be forced, if the defendant proved compliance with the federal law, to establish that its evidence was untainted. This situation might indeed seriously hamper such state prosecutions. By contrast, far from all criminal violations committed on the highways by drivers of motor vehicles involved property damage. The burden resulting from the imposition of use restrictions in the latter situation will exist only in those instances where property damage occurs in the course or as a result of a criminal violation committed on the highways by a driver.

We conclude that criminal prosecutions of drivers involved in accidents will not be unduly hampered by rules that prosecuting authorities may not use information divulged as a result of compliance with section 20002, subdivision (a), of the Vehicle Code or the fruits of such information, and that, in prosecutions of individuals who have complied with that section, the state must establish that its evidence is not the fruit of such information.

Since imposition in the present case of use restrictions as described above will neither frustrate any apparent legislative purpose behind the enactment of section 20002 of the Vehicle Code nor unduly hamper criminal prosecutions of drivers involved in accidents, and since the imposition of such restrictions will not preclude the state Legislature from overriding our decision if it wishes, the reasons impelling the United States Supreme Court to reject the "attractive and apparently practical" suggestion of imposing restrictions in Marchetti v. United States, supra, 390 U.S. 39, 58, are absent in the present case, and we must, in order to fulfill our responsibility to protect the privilege against self-incrimination, hold that, where compliance with section 20002 of the Vehicle Code would otherwise be excused by an assertion of the privilege, compliance is, as in other cases, mandatory, and state prosecuting authorities are precluded from using the information disclosed as a result of compliance or its fruits in connection with any criminal prosecution related to the accident.

Byers v. Justice Court, supra, at 1055-1057, 458 P.2d at 476-477 (footnotes omitted).

It is readily apparent from the above passages that the California Supreme Court recognized, as of course it had to, see n. 4, supra, that imposition of a use restriction would significantly impair the State’s capacity to prosecute drivers whose illegal behavior caused accidents. But that court had decided that the Federal Constitution compelled the State, at the very least, to accept that burden on its prosecutorial efforts in such cases if it wished to pursue its nonprosecutorial goal through compelled self-reporting. Given the availability of the criminal sanction for cases where accidents do not occur, the court concluded that interference with prosecutorial efforts in accident cases was not so important that it rendered the use restriction less palatable to the State than recognition of an outright privilege not to disclose. I fail to see how it "flouts" the State’s assessment of its own interests to remove the premise that federal law compels a sacrifice of criminal law enforcement where accidents are involved; I doubt that anyone would maintain that criminal law enforcement goals are not significantly served by imposition of criminal sanctions in the very cases where the feared results of dangerous driving have actually materialized. Of course, after the federal law premise has been removed, the State is free to conclude as a matter of state constitutional or legislative policy that continued imposition of use restrictions with respect to this category of cases would still be appropriate in light of the State’s own assessment of the relevant regulatory interest at stake and the personal values protected by the privilege against self-incrimination.


Thus, the public regulation of driving behavior through a pattern of laws which includes compelled self-reporting to ensure financial responsibility for accidents and criminal sanctions to deter dangerous driving entails genuine risks of self-incrimination from the driver’s point of view. The conclusion that the Fifth Amendment extends to this regulatory scheme will impair the capacity of the State to pursue these objectives simultaneously. For compelled self-reporting is a necessary part of an effective scheme of assuring personal financial responsibility for automobile accidents. Undoubtedly, it can be argued that self-reporting is at least as necessary to an effective scheme of criminal law enforcement in this area. The fair response to that latter contention may be that the purpose of the Fifth Amendment is to compel the State to opt for the less efficient methods of an "accusatorial" system. But see Schmerber v. California, 384 U.S. 757 (1966). But it would not follow that the constitutional values protected by the "accusatorial" system, see infra at 450-451, are of such overriding significance that they compel substantial sacrifices in the efficient pursuit of other governmental objectives in all situations where the pursuit of those objectives requires the disclosure of information which will undoubtedly significantly aid in criminal law enforcement.

For while this Court’s Fifth Amendment precedents have instructed that the Fifth Amendment be given a construction "as broad as the mischief against which it seeks to guard," Miranda v. Arizona, 384 U.S. 436, 459-460 (1966) (quoting from Counselman v. Hitchcock, 142 U.S. 547, 562 (1892)), and while the Court, in Malloy v. Hogan, 378 U.S. 1 (1964), treated the privilege as one of those fundamental rights to be "selectively incorporated" into the Fourteenth Amendment, it is also true that the Court has recognized that the "scope of the privilege [does not coincide] with the complex of values it helps to protect." Schmerber v. California, 384 U.S. at 762. And see MR. JUSTICE BRENNAN’s concurring opinion in Marchetti, supra, and Grosso, supra, 390 U.S. at 72-73. In the Schmerber case, the Court concluded that the impact of compelled disclosure of "non-testimonial" evidence on the values the privilege is designed to protect was insufficient to warrant a further restriction on the State’s enforcement of its criminal laws. And the Court in Schmerber explicitly declined reliance on the implication of a "testimonial" limitation to be found in the language of the Fifth Amendment. 384 U.S. at 761 n. 6.

The point I draw from the Schmerber approach to the privilege is that

[t]he Constitution contains no formulae with which we can calculate the areas within this "full scope" to which the privilege should extend, and the Court has therefore been obliged to fashion for itself standards for the application of the privilege. In federal cases stemming from Fifth Amendment claims, the Court has chiefly derived its standards from consideration of two factors: the history and purposes of the privilege, and the character and urgency of the other public interests involved. . . .

Spevack v. Klein, 385 U.S. 511, 522-523 (1967). (HARLAN, J., dissenting.)

There are those, I suppose, who would put the "liberal construction" approach of cases like Miranda and Boydv. United States, 116 U.S. 616 (1886), side by side with the balancing approach of Schmerber, and perceive nothing more subtle than a set of constructional antinomies to be utilized as convenient bootstraps to one result or another. But I perceive in these cases the essential tension that springs from the uncertain mandate which this provision of the Constitution gives to this Court.

This Court’s cases attempting to capture the "purposes" or "policies" of the privilege demonstrate the uncertainty of that mandate. See Tehan v. Shott, 382 U.S. 406, 413-416 (1966); Murphy v. Waterfront Comm’n, 378 U.S. at 55; Miranda v. Arizona, 384 U.S. at 460; Boyd v. United States, supra. One commentator takes from these cases two basic themes: (1) the privilege is designed to secure among governmental officials the sort of respect for the integrity and worth of the individual citizen thought to flow from the commitment to an "accusatorial," as opposed to an "inquisitorial," criminal process; (2) the privilege is part of the "concern for individual privacy that has always been a fundamental tenet of the American value structure." McKay, Self-Incrimination and the New Privacy, 1967 Sup.Ct.Rev.193, 210. Certainly, in view of the extension of the privilege to witnesses in civil lawsuits, see McCarthy v. Arndstein, 266 U.S. 34 (1924) -- a context in which, in most instances, information is sought by a private party wholly for purposes of resolving a private dispute it is unlikely that the rationale of the privilege can be limited to preservation of official respect for the individual’s integrity. Though the "privacy" rubric is not without its difficulties in the Fifth Amendment area,{5} it does, I think, capture an important element of the concerns of the privilege, which accounts in part for our willingness to accept its reach beyond the context of the criminal investigation or trial. The premise of the criminal sanction -- and the disgrace that goes with it -- is that it is more feared than the mere censure of our fellow members of society; although communal living requires us to be willing to disclose much to the government and our fellow citizens about our private affairs -- and although the fear of eventually having to disclose operates as an inhibiting factor on our personal lives -- it still makes sense to think of the Fifth Amendment as intended at least in part to relieve us of the very particular fear arising from the imposition of criminal sanctions.

These values are implicated by governmental compulsion to disclose information about driving behavior as part of a regulatory scheme including criminal sanctions. The privacy interest is directly implicated, while the interest in preserving a commitment to the "accusatorial" system is implicated in the more attenuated sense that an officialdom which has available to it the benefits of a self-reporting scheme may be encouraged to rely upon that scheme for all governmental purposes. But, as I have argued, it is also true that, unlike the ordinary civil lawsuit context, special governmental interests in addition to the deterrence of antisocial behavior by use of criminal sanctions are affected by extension of the privilege to this regulatory context.{6} If the privilege is extended to the circumstances of this case, it must, I think, be potentially available in every instance where the government relies on self-reporting. And the considerable risks to efficient government of a self-executing claim of privilege will require acceptance of, at the very least, a use restriction of unspecified dimensions. Technological progress creates an ever-expanding need for governmental information about individuals. If the individual’s ability in any particular case to perceive a genuine risk of.self-incrimination is to be a sufficient condition for imposition of use restrictions on the government in all self-reporting contexts, then the privilege threatens the capacity of the government to respond to societal needs with a realistic mixture of criminal sanctions and other regulatory devices.{7} To the extent that our Marchetti-Grosso line of cases appears to suggest that the presence of perceivable risks of incrimination, in and of itself, justifies imposition of a use restriction on the information gained by the Government through compelled self-reporting, I think that line of cases should be explicitly limited by this Court.


I would not, however, overrule that line of cases. In each of those cases,{8} the Government, relying on its taxing power, undertook to require the individual to focus attention directly on behavior which was immediately recognizable as criminal in virtually every State in the Union. Since compelled self-reporting is certainly essential to the taxing power, those cases must be taken to stand at least for the proposition that the Fifth Amendment requires some restriction on the efficiency with which government may seek to maximize both noncriminal objectives through self-reporting schemes and enforcement of criminal sanctions. If the technique of self-reporting as a means of achieving regulatory goals unrelated to deterrence of antisocial behavior through criminal sanctions is carried to an extreme, the "accusatorial" system which the Fifth Amendment is supposed to secure can be reduced to mere ritual. And the risk that such a situation will materialize is not merely a function of the willingness of an ill-disposed officialdom to exploit the protective screen of ostensible legislative purpose to bypass the procedural limitations on governmental collection of information in the criminal process. The sweep of modern governmental regulation -- and the dynamic growth of techniques for gathering and using information culled from individuals by force of criminal sanctions -- could, of course, be thought to present a significant threat to the values considered to underpin the Fifth Amendment, quite apart from any supposed illegitimate motives that might not be cognizable under ordinary canons of judicial review. As uncertain as the constitutional mandate derived from this portion of the Bill of Rights may be, it is the task of this Court continually to seek that line of accommodation which will render this provision relevant to contemporary conditions.

In other words, we must deal in degrees in this troublesome area. The question whether some sort of immunity is required as a condition of compelled self-reporting inescapably requires an evaluation of the assertedly noncriminal governmental purpose in securing the information, the necessity for self-reporting as a means of securing the information, and the nature of the disclosures required. See generally Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government’s Need for Information, 1966 Sup.Ct.Rev. 103, 128-160.

The statutory schemes involved in Marchetti and related cases, seen. 8, supra, focused almost exclusively on conduct which was criminal. As the opinion of THE CHIEF JUSTICE points out, the gambling activities involved in Marchetti and Grosso, which gave rise to the obligation to report under that statutory scheme, were illegal under federal law and the laws of almost every State in the Union. See Marchetti, supra, at 44-46. Indeed, MR. JUSTICE BRENNAN s concurring opinion in Marchetti and Grosso, supra, at 74-75, concisely sets forth the precise degree of focus on criminal behavior as the predicate for state compulsion to report information:

The Court’s opinions fully establish the statutory system’s impermissible invasions of the privilege. Indeed, 26 U.S.C. § 4401 should create substantial suspicion on privilege grounds simply because it is an excise tax upon persons "engaged in the business of accepting wagers" or who conduct "any wagering pool or lottery." The persons affected by this language are a relatively small group, many of whom are engaged in activities made unlawful by state and federal statutes. But § 4401 is actually even more directly confined to that group. Section 4402(1) exempts from the tax wagers placed with a parimutuel wagering enterprise "licensed under State law," and § 4421 defines "wager" to exclude most forms of unorganized gambling such as dice and poker, and defines "lottery" to exclude commonly played games such as bingo and drawings conducted by certain tax exempt organizations. The effect of these exceptions is to limit the wagering excise tax under § 4401 almost exclusively to illegal, organized gambling.

Moreover the code contemplates extensive recordkeeping reporting by persons obligated to pay the tax. But these are records and reports which would incriminate overwhelmingly. Section 6011(a) requires any person liable to pay a tax to file a return in accordance with the forms and regulations promulgated by the Secretary or his delegate. The regulations promulgating recordkeeping requirements and the requirement that taxpayers make a monthly return on Form 730 . . . were therefore formulated pursuant to specific congressional authority. That the return is intended to be a part of the wagering tax obligation is clear from the face of the return itself. . . .

Although compelled self-reporting is certainly essential to the taxing power, the decision to collect taxes through a special regulatory scheme which conditions the obligation to report on intent to commit a crime or the actual commission of a crime represents a determination to pursue noncriminal governmental purposes to the entire exclusion of the values protected by the Fifth Amendment. Cf. Grosso, supra, at 76 (BRENNAN, J., concurring). In a very real sense, compliance with the statutory requirements involved in Marchetti and Grosso, followed by use of the information in a prosecution, reduced the "accusatorial system" to the role of a merely ritualistic confirmation of the "conviction" secured through the exercise of the taxing power. Those statutory schemes are hardly distinguishable from a governmental scheme requiring robbers to register as such for purposes of paying an occupational tax and a tax on the proceeds of their crimes. Cf. my Brother BRENNAN’s opinion in the instant case, post at 473.

In contrast, the "hit and run" statute in the present case predicates the duty to report on the occurrence of an event which cannot, without simply distorting the normal connotations of language, be characterized as "inherently suspect"; i.e., involvement in an automobile accident with property damage. And, having initially specified the regulated event -- i.e., an automobile accident involving property damage in the broadest terms possible consistent with the regulatory scheme’s concededly noncriminal purpose, the State has confined the portion of the scheme now before us, seen. 1 of THE CHIEF JUSTICE’s opinion, to the minimal level of disclosure of information consistent with the use of compelled self-reporting in the regulation of driving behavior. Since the State could -- in the context of a regulatory scheme including an otherwise broad definition of the regulated event -- achieve the same degree of focus on criminal conduct through detailed reporting requirements as was achieved in Marchetti and Grosso through the definition of the event triggering the reporting duties of the gambling tax scheme, the Court must take cognizance of the level of detail required in the reporting program as well as the circumstance giving rise to the duty to report; otherwise, the State, possessed as it is of increasingly sophisticated techniques of information gathering and storage, will, in the zealous pursuit of its noncriminal regulatory goals, reduce the "accusatorial system" which the Fifth Amendment is intended to secure to a hollow ritual.

California’s decision to compel Byers to stop after his accident and identify himself will not relieve the State of the duty to determine, entirely by virtue of its own investigation after the coerced stop, whether or not any aspect of Byer’s behavior was criminal. Nor will it relieve the State of the duty to determine whether the accident which Byers was forced to admit involvement in was proximately related to the aspect of his driving behavior thought to be criminal.{9} In short, Byers having once focused attention on himself as an accident participant, the State must still bear the burden of making the main evidentiary case against Byers as a violator of § 21750 of the California Vehicle Code.{10} To characterize this burden as a merely ritualistic confirmation of the "conviction" secured through compliance with the reporting requirement in issue would be a gross distortion of reality; on the other hand, that characterization of the evidentiary burden remaining on the State and Federal Governments after compliance with the regulatory scheme involved in Marchetti and Grosso seems proper.


Considering the noncriminal governmental purpose in securing the information, the necessity for self-reporting as a means of securing the information, and the nature of the disclosures involved, I cannot say that the purposes of the Fifth Amendment warrant imposition of a use restriction as a condition on the enforcement of this statute. To hold otherwise would, it seems to me, embark us on uncharted and treacherous seas. There will undoubtedly be other statutory schemes utilizing compelled self-reporting and implicating both permissible state objectives and the values of the Fifth Amendment which will render this determination more difficult to make. A determination of the status of those regulatory schemes must, of course, await a proper case.

On the premises set forth in this opinion, I concur in the judgment of the Court.{11}

1. The text of § 20002(a) is reproduced in THE CHIEF JUSTICE’s opinion, ante at 426. Section 21750 of the Cal.Vehicle Code provides:

The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left at a safe distance without interfering with the safe operation of the overtaken vehicle. . . .

2. He then went on to say that the question need not be reached because, there, the defendant had declined to make any return at all. Id. at 264.

3. Understandably, MR. JUSTICE BRENNAN recedes from the implications of his position as applied to the facts in the Sullivan case. Thus, while conceding that, on his premises the privilege would have to apply "if disclosure of the amount of income criminally earned would create a not insubstantial risk of incrimination in any particular case . . . ," he avers that,

[s]ince the amount of income earned by an individual engaged in crime is usually neither relevant to his prosecution for such crimes nor helpful to police authorities in determining that he committed crimes, [Holmes, J.’s, suggestion that the privilege would not apply to report of income earned] would seem . . . logical. . . .

Opinion of MR. JUSTICE BRENNAN, post at 471 n. 7.

That, however, will not do. Mr. Justice Holmes’ suggestion related to the particular case of a defendant whose income was earned entirely or largely from business in violation of the National Prohibition Act. Sullivan, supra, at 262-263. I cannot treat as "imaginary" such a defendant’s fear that supplying the Government with a statement of the amount of money derived from his crime will -- when combined with other evidence perhaps in the Government’s hands -- prove helpful in securing his conviction for those crimes. That, of course, is the test MR. JUSTICE BRENNAN must -- consistently with his premises -- apply. See United States v. Burr, 25 F.Cas. 38, 40 (No. 14,692e) (CC Va. 1807); Hoffman v. United States, 341 U.S. 479 (1951). And since, on MR. JUSTICE BRENNAN’s premises, he must judge the validity of the claim of privilege wholly from the defendant’s point of view at the time he faces the decision whether or not to yield to governmental compulsion and supply the information, the issue cannot turn on whether or not the record as subsequently developed in a prosecution for income tax evasion shows that the Government actually had additional information on the defendant’s criminal activities.

Assuming, then, that Sullivan’s claim of privilege would have to be respected if we are to transpose ipso facto the Court’s Fifth Amendment jurisprudence to self-reporting requirements of this sort, MR. JUSTICE BRENNAN’s position forces the Government to choose between taxing the proceeds of crime and enforcing the criminal sanction relevant to the transaction giving rise to those proceeds.

I note that the question whether the Fifth Amendment require "transactional" as well as "use" immunity, even in the context of the criminal process, has not been resolved by the Court. See Piccirillo v. New York, 400 U.S. 548 (1971). See also MR. JUSTICE WHITE’s concurring opinion in Murphy v. Waterfront Comm’n, 378 U.S. 52, 92 (1964).

4. That is a most difficult position to maintain. By compelling Byers to stop, the State compelled Byers to focus official attention on himself in circumstances which, I agree, involved for Byers a substantial risk of self-incrimination. In this circumstance, the State, if it is to prosecute Byers after the coerced stop, will bear the burden of proving that the State could have selected Byers out from the general citizenry for prosecution even if he had not stopped. With respect to automobile drivers, that would be a heavy burden indeed. I doubt this burden could be met in most cases of this sort consistent with a good faith judicial application of the rules relating to proof of an independent source of evidence.

5. See Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U.Cin.L.Rev. 671, 687-690 (1968).

6. MR. JUSTICE BRENNAN maintains that the state governmental interest in ensuring personal financial responsibility for automobile accidents is indistinguishable from the ordinary civil lawsuit context. See post at 476-477. That assertion truly does flout the State’s assessment of its own interests; § 20002(a) is only a part of a comprehensive self-reporting scheme for all classes of automobile accidents causing harm to others. See generally Cal. Vehicle Code §§ 20001-20012. The California Supreme Court informs us that this legislative scheme is related in coverage and intent to the state financial responsibility law. (Vehicle Code, §§ 16000-16553); see Byers v. Justice Court, supra, at 1054-1055, 458 P.2d at 475-476. The premise of that court’s decision to substitute the concededly less complete protection of a use restriction for the outright privilege not to disclose -- presumably available in the ordinary civil lawsuit context -- can only be that the State’s interest in securing personal financial responsibility for automobile accidents is sufficiently distinguishable from the general governmental interest implicated in the maintenance of orderly dispute settlement mechanisms to justify the State’s reliance on compelled self selection as a party involved in events causing harm to others. In view of the presence of similar statutes in every State of the Union and the District of Columbia, I do not understand MR. JUSTICE BRENNAN’s assertion that this premise is "artificial," if not "disingenuous." Post at 477

7. My Brother BRENNAN’s primary response to my view that significant interference with state regulatory goals unrelated to the deterrence of antisocial behavior through criminal sanctions may mean that there is no Fifth Amendment privilege even though, from the individual’s point of view, there are "real," and not "imaginary," risks of self-incrimination is a citation to Mr. Justice Brandeis’ distinguished dissenting opinion in Olmstead v. United States, 277 U.S. 438, 472-477 (1928). Brandeis’ views were expressed in the context of a case where no such governmental interest could be said to be implicated; to sever those views from their context and transpose them ipso facto to the problem at hand is to slide softly into that "lake of generalities" from which confusion is sure to flow. Cf. opinion of MR. JUSTICE BRENNAN, post at 469.

8. Marchetti v. United States, 390 U.S. 39 (1968); Grosso v. United States, 390 U.S. 62 (1968); Haynes v. United States, 390 U.S. 85 (1968); Leary v. United States, 395 U.S. 6 (1969).

9. It bears repeating that Byers was charged with passing another vehicle at an unsafe distance, seen. 1, supra; he was not charged with being involved in an automobile accident causing property damage. Although the California Supreme Court did not deal with § 21750 of the Vehicle Code, we may assume that the fact of the accident becomes relevant to the illegal passing charge only if the allegedly unsafe aspects of Byers’ passing was the proximate cause of the resulting accident. Of course, the parties in the instant litigation stipulated to that effect. See App. 36. That stipulation certainly supports the conclusion that Byers faced a "real" and not "imaginary" risk of self-incrimination at the time he had to make his decision whether or not to stop. But on my analysis the presence of such risks is not a sufficient predicate for the assertion of the privilege in this regulatory context; we must also consider the impact on the "accusatorial system" of permitting the State to utilize the fruits of the coerced stop in a subsequent prosecution. For that purpose, the post hoc stipulation of the parties as to the legal cause of the accident in a subsequent prosecution for failing to stop is irrelevant.

10. I do not minimize the aid given the State of California by virtue of the requirement to stop and identify oneself. But this minimal requirement is essential to the State’s nonprosecutorial goal, and, the stop having been once coerced, virtually all information secured after the stop is likely to be tainted for purposes of exclusion under the Fifth Amendment in any subsequent prosecution. Seen. 4, supra.

11. My Brother BRENNAN, relying on Raley v. Ohio, 360 U.S. 423 (1959), apparently takes the position that, because I do agree that Marchetti and Grosso could fairly be read to support respondent Byers’ refusal to comply with § 20002(a) on Fifth Amendment grounds, I am constrained to hold that, as a matter of federal due process, Byers cannot be prosecuted by the State. See post at 477. On the premises set forth in my opinion, Byers’ position is analytically indistinguishable from that of any individual whose claim of constitutional privilege with respect to primary behavior is defeated by a holding of this Court limiting a prior constitutional precedent. Raley, of course, recognized such a due process right in a factual setting involving a great deal more than retroactive application of a judicial ruling limiting prior constitutional precedent.


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Chicago: Harlan, "Harlan, J., Concurring," California v. Byers, 402 U.S. 424 (1971) in 402 U.S. 424 402 U.S. 435–402 U.S. 451. Original Sources, accessed July 24, 2024,

MLA: Harlan. "Harlan, J., Concurring." California v. Byers, 402 U.S. 424 (1971), in 402 U.S. 424, pp. 402 U.S. 435–402 U.S. 451. Original Sources. 24 Jul. 2024.

Harvard: Harlan, 'Harlan, J., Concurring' in California v. Byers, 402 U.S. 424 (1971). cited in 1971, 402 U.S. 424, pp.402 U.S. 435–402 U.S. 451. Original Sources, retrieved 24 July 2024, from