William J. Brennan, Jr.

“ Such transactional immunity, in my view, steers a well-conceived middle path between, on the one hand, a position that no immunity statute can supplant the constitutional privilege and, on the other, a position that affords the individual the altogether too narrow protection of use immunity as applied to the very government that has compelled him to incriminate himself. ”

“ In sum, the Court attempts, none too successfully in my judgment, to create a smokescreen by focusing on questions of state law. Petitioner's conviction, without more, squarely raises the federal constitutional question on a concrete, factual record which provides an excellent basis for constitutional adjudication. Under these circumstances, there exists no basis upon which the Court can justify dismissal of the writ of certiorari as improvidently granted. I therefore turn to the merits.
Only one sovereignty, New York State, is involved. ”

“ Thus we object not so much to convicting a man on the basis of evidence from his own mouth, but rather to the practice of compelling him to incriminate himself, regardless of a subsequent prosecution. ”

“ That is a matter of federal constitutional law which does not depend upon the interpretation of the New York immunity statute.
The Court's wholly wrong focus upon the particular state immunity statute [2] involved results from its failure to distinguish two different procedural postures in which the question of the scope of immunity required by the Fifth Amendment can be raised. First, an individual may rely on the Fifth Amendment privilege and refuse to answer a question after he has been granted immunity pursuant to an immunity statute and ordered to respond. ”

“ The policies and purposes which the privilege serves are promoted by the transactional immunity standard. Mr. Justice Frankfurter's oft-quoted remark that ' (t) he privilege against self-incrimination is a specific provision of which it is peculiarly true that 'a page of history is worth a volume of logic," Ullmann v. United States, 350 U.S., at 438, 76 S.Ct., at 506, reflects the fact that the privilege safeguards many interrelated fundamental values: 'It will not do, therefore, to assign one isolated policy to the privilege,' Murphy v. ”

“ The words of the Fifth Amendment do not, in terms, suggest that government may compel men to incriminate themselves provided it promises that it will not prosecute them for the crimes revealed. The clause does not prohibit a prosecution or conviction; it prohibits the application vel non of compulsion to an individual to force testimony that incriminates him, regardless of whether he is actually prosecuted. ”

“ Ullmann's assertion that transactional immunity has become part of our 'constitutional fabric' finds support in the action of Congress in the 78 years since Counselman first announced the standard. Congress has written more than 40 immunity provisions into various federal statutes during that time, and with one minor and unexplained exception in 1898 and two exceptions in 1970, [11] every provision has provided for transactional immunity. ”

“ At the request of the prosecutor, Sewell later attended a meeting with petitioner to confirm the bribe offer. The relevant narrative skips a year during which petitioner and his codefendant were indicted for attempted assault, pleaded guilty, and were sentenced to jail. On March 18, 1965, a year after the assault and bribery attempt, petitioner was summoned from jail to appear before a grand jury investigating the possibility of criminal conspiracies in connection with the assault on Graham. ”

“ The prosecutor refused permission, stating:
'Under these circumstances you are not a defendant, you are a witness, you have been given immunity. That means you cannot be prosecuted. Your rights are fully protected and there is no reason for your conferring with your attorney, do you understand that?' App. 34. [1]
Petitioner then answered all questions admitting, inter alia, that he and his codefendant had been hired to assault and had in fact assaulted Graham; that the tire irons in the possession of the police were the instruments they had used in the assault ”

“ It assumes only the normal margin of human fallibility. Men working in the same office or department exchange information without recording carefully how they obtained certain information; it is often impossible to remember in retrospect how or when or from whom information was obtained. By hypothesis, the situation involves one jurisdiction with presumably adequate exchange of information among its various law enforcement officers. ”