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[Cite as Knapp v. Schweitzer, 357 U.S. 371, 378 n.5 (1958). NOTE: This decision concerns a Teamster union member granted immunity from prosecution for testifying in a state court. The union member refused to testify on Fifth Amendment grounds that he was not immunized against federal prosecution. He was held in contempt because the Fifth Amendment applied only to federal court and not the states. The Supreme Court agreed. In a footnote, the Court observed that "[b]y 1900 the applicability of the Bill of Rights to the States had been rejected in cases involving claims based on virtually every provision of the first Articles of Amendment." The Court provided a lengthy list of these claims and included Cruikshank for "assemble and petition the government" and "right to keep and bear arms." (P. 378 n.5) This indicates the Court in 1957 felt the claim of injury in Cruikshank, which was unrelated to the militia, was a indeed a claim "based on [a] provision in the first eight Articles of Amendment" thereby believing it was applicable in that case of purely individual exercise (notwithstanding the federal government's lack of authority to enforce protections).]

[Knapp v. Schweitzer continued
Return to pages 371-377 (Majority opinion).
Return to page 378 (Majority opinion cont.).
Currently at pages 379-385 (Majority opinion cont., dissenting and concurring opinions).]

[paragraph continued from previous page] days of the extensive sweep of such federal statutes as the income tax law and the criminal sanctions for their evasions, investigation under state law to discover corruption and misconduct, generally, in violation of state law could easily be thwarted if a State were deprived of its power to expose such wrongdoing with a view to remedial legislation or prosecution. While corruption and generally low standards in local government may not today be as endemic as Lord Bryce reported them to be in The American Commonwealth (1888), not even the most cheerful view of the improvements that have since taken place can afford justification for blunting the power of States to ferret out, and thereby guard against, such corruption by restrictions that would reverse our whole constitutional history. To achieve these essential ends of state government the States may find it necessary, as did New York, to require full disclosure in exchange for immunity from prosecution. This cannot be denied on the claim that such state law of immunity may expose the potential witness to prosecution under federal law. See Jack v. Kansas, 199 U.S. 372. Every witness before a state grand jury investigation would feel free to block those vitally important proceedings.

In construing the Fifth Amendment and its privilege against self-incrimination, one must keep in mind its (p.380)essential quality as a restraint upon compulsion of testimony by the newly organized Federal Government at which the Bill of Rights was directed, and not as a general declaration of policy against compelling testimony. It is plain that the amendment can no more be thought of as restricting action by the States than as restricting the conduct of private citizens. The sole--although deeply valuable--purpose of the Fifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his own mouth.

Of course the Federal Government may not take advantage of this recognition of the States' autonomy in order to evade the Bill of Rights. If a federal officer should be a party to the compulsion of testimony by state agencies, the protection of the Fifth Amendment would come into play. Such testimony is barred in a federal prosecution, see Byars v. United States, 273 U.S. 28. Whether, in a case of such collaboration between state and federal officers, the defendant could successfully assert his privilege in the state proceeding, we need not now decide, for the record before us is barren of evidence that the State was used as an instrument of federal prosecution or investigation. Petitioner's assertion that a federal prosecuting attorney announced his intention of cooperating with state officials in the prosecution of cases in a general field of criminal law presents a situation devoid of legal significance as a joint state and federal endeavor.

This Court with all its shifting membership has repeatedly found occasion to say that whatever inconveniences and embarrassments may be involved, they are the price we pay for our federalism, for having our people amenable to--as well as served and protected by--two governments. If a person may, through immunized self-disclosure (p.381)before a law-enforcing agency of the State, facilitate to some extent his amenability to federal process, or vice versa, this too is a price to be paid for our federalism. Against it must be put what would be a greater price, that of sterilizing the power of both governments by not recognizing the autonomy of each within its proper sphere.

Judgment affirmed.

Mr. Justice Brennan, concurring.

I join the Court's opinion upon my understanding that the only question we decide is that a witness who is granted immunity by a State against state prosecution may be compelled to testify in a state proceeding and cannot successfully assert the privilege against self-incrimination under the Fifth Amendment.

I therefore do not believe that reconsideration of the holding in Feldman v. United States, 322 U.S. 487, is necessary or appropriate in this case. In view of the contrary suggestion in the dissent of Mr. Justice Black, I think it proper however to note that in joining the Court's opinion, I should not be understood as believing that our decision today forecloses reconsideration of the Feldman holding in a case requiring our decision of that question.

Mr. Chief Justice Warren, dissenting.

There can be no doubt that the problem in this case is a problem of federalism. Competing considerations of the greatest significance are involved. But in resolving questions that touch upon the intricate and delicate mechanism of our federal system it is especially important to remember, as Mr. Justice Holmes observed, that "General propositions do not decide concrete cases." Lochner v. New York, 198 U.S. 45,76. In this case the New York courts sustained petitioner's conviction on the understanding (p.382)that in the circumstances of this case the testimony petitioner was compelled to give before the New York State grand jury could not, as a matter of federal law, be employed in a subsequent federal prosecution. On the other hand, it is implicit in the majority opinion in this Court that the petitioner does run the risk of a federal prosecution based on his own testimony under Feldman v. United States, 322 U.S. 487. If we are to have any profitable discussion of federalism based on the facts of this case, we should begin with agreement on the facts and the controlling principles. In any event, we should not affirm a New York conviction if in fact the state courts construed state law under a misconception of federal law. To do so does violence to the vital principle of federalism that a state court is the final arbiter of state law. See May v. Anderson, 345 U.S. 528, 534, 535. I therefore agree with Mr. Justice Black that this case should be remanded so that the New York Court of Appeals can reconsider state law in light of the majority's conclusion that the role of the federal prosecutor was not such as to prevent use of the state-compelled testimony against petitioner in a federal prosecution. At all events, the unsettling influence that Feldman has had upon the course of this litigation indicates that a satisfactory solution cannot be reached without a reconsideration of that decision.

Mr. Justice Black, whom Mr. Justice Douglas joins, dissenting.

Petitioner refused to answer questions directed to him by a New York grand jury on the ground that his answers might tend to incriminate him under both state and federal law. He was then granted immunity from prosecution under state law and ordered to answer. When he (p.383)persisted in his refusal he was found guilty of contempt and sentenced to jail. In reviewing his conviction the Appellate Division of the New York Supreme Court rejected the contention that it violated both State and Federal Constitutions to punish him for declining to give testimony which might have incriminated him under federal law. 2 App. Div. 2d 579, 157 N.Y.S. 2d 158.

Article I, § 6 of the New York Constitution, like the Fifth Amendment, provides that "No person ... shall be compelled in any criminal case to be a witness against himself." The Appellate Division ruled that this state provision had not been infringed, pointing out (1) that petitioner had been granted immunity from state prosecution and (2) his answers could not be used to convict him of a federal crime since the record showed that the federal district attorney had "cooperated" with state officers in the grand jury investigation. The New York Court of Appeals affirmed without opinion. 2 N.Y. 2d 913, 141 N.E. 2d 825.

In affirming, this Court evidently takes the position, contrary to the Appellate Division, that whatever cooperation between federal and state officials is disclosed by this record it is not enough to bar use of petitioner's testimony in a federal prosecution. In the light of this, it seems to me that the proper course would be to vacate the judgment of the New York Court of Appeals and remand so that the courts of that State might consider petitioner's claim of privilege under the New York Constitution free from the erroneous assumption that his testimony could not be used to convict him of a federal crime. See Standard Oil Co. of California v. Johnson, 316 U.S. 481. Cf. Patterson v. Alabama, 294 U.S. 600, 607; 28 U.S.C. § 2106. Otherwise petitioner will go to jail when there is at least a chance that the New York courts would not have upheld his conviction had they (p.384)known, as they now do, that his state-compelled testimony could be used against him in the federal courts.[384.1]

I think it is also appropriate to say a few words here about Feldman v. United States, 322 U.S. 487, which was referred to by the Appellate Division. In that case a minority of this Court held, 4-3, that information extracted from a person by state authorities under threat of punishment could be used to convict him of a federal crime.[384.2] The passage of time has only strengthened my conviction that this result is thoroughly contrary to the guarantee of the Fifth Amendment that no person shall be compelled to be a witness against himself, at least in a federal prosecution. The untenability of the premises upon which the Court relied in Feldman has been clearly revealed in a series of penetrating law review articles by Professor J. A. C. Grant. Immunity from Compulsory Self-Incrimination in a Federal System of Government, 9 Temple L.Q. 57, 194; Federalism and Self-Incrimination, 4 U.C.L.A. Law Rev. 549, 5 id., 1. Feldman places a witness who is called before a state agency and ordered to testify in a desperate position; he must either remain silent and risk state imprisonment for contempt or confess (p.385)himself into a federal penitentiary. See Marcello v. United States, 196 F.2d 437. Indeed things have now reached the point, as the result of United States v. Murdock, 284 U.S. 141, Feldman, and the present case, where a person can be whipsawed into incriminating himself under both state and federal law even though there is a privilege against self-incrimination in the Constitution of each. Cf. Irvine v. California, 347 U.S. 128; United States v. Kahriger, 345 U.S. 22. I cannot agree that we must accept this intolerable state of affairs as a necessary part of our federal system of government.

[Return to pages 371-377 (Majority opinion).
Return to page 378 (Majority opinion cont.).
Currently at pages 379-385 (Majority opinion cont., dissenting and concurring opinions).]

[384.1] In Michigan, at least, the state constitution has been interpreted as preventing state officers from compelling disclosure of facts which might tend to incriminate the witness under federal law, even though he has been granted full immunity from state prosecution. People v. DenUyl, 318 Mich. 645, 29 N.W. 2d 284. Cf. State ex rel. Doran v. Doran, 215 La. 151, 39 So.2d 894.

[384.2] Contrast Bram v. United States, 168 U.S. 532, where this Court ruled that an involuntary confession could not be used in a federal prosecution even though it was procured by officers of a foreign nation outside the United States. And see Ashcraft v. Tennessee, 322 U.S. 143, at 155, where we declared that "The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession." It seems to me that there was at least as much coercion in Feldman as in either of these cases.