# Regan v. New York/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Dissenting Opinion Black
United States Supreme Court
349 U.S. 58
Regan v. New York
Argued: Nov. 18, 1954. --- Decided: April 25, 1955
Petitioner refused to testify before a New York grand jury which was investigating the alleged association of city policemen with criminals, racketeers, and gamblers in Kings County. He was convicted of criminal contempt and sentenced to one year's imprisonment. We granted certiorari, 347 U.S. 1010, 74 S.Ct. 869, 98 L.Ed. 1134, to determine whether, under the circumstances here presented, petitioner was deprived of his liberty without due process of law in being punished for his refusal to testify. Cf. Adamson v. People of State of California, 332 U.S. 46, 54, 67 S.Ct. 1672, 1676, 91 L.Ed. 1903.
The following New York constitutional and statutory provisions are essential to an understanding of the case. Article I, § 6, of the Constitution of the State of New York provides, in part, that no person shall 'be compelled in any criminal case to be a witness against himself'. Section 381 of the New York Penal Law, McK.Consol.Laws, c. 40, as it existed at the time of this case, provided that testimony relating to bribery could not be withheld on the ground of self-incrimination, but conferred immunity from prosecution for any criminal activity revealed in such testimony. Section 903 of the Charter of the City of New York provides that any city employee who refuses to sign a waiver of his immunity against subsequent prosecution upon any matter of an official nature about which he is asked to testify shall lose his job and be disqualified from future employment with the city. Article I, § 6, of the Constitution of the State of New York contains a provision much to the same effect.
Petitioner was first called to testify before the grand jury on March 7, 1951. He was then a member of the Police Department of the City of New York. Prior to being sworn, he signed a waiver of immunity against prosecution. After being sworn, he testified that the waiver had been executed voluntarily and with full understanding as to its meaning. He was given a financial questionnaire and directed to return with it completely filled out on March 28, 1951. On March 27, 1951, his connection with the police department was severed. His next appearance before the grand jury was on October 22, 1952, when he was given another questionnaire and instructed to return it in completed form by November 12, 1952. On November 12 he asked for an extension of time and his request was granted. On December 21, 1952, he was once again before the grand jury On that occasion, he was asked the following question:
'While you were a plainclothesman in the Police Department of the City of New York did you ever accept or receive any bribes from bookmakers or other gamblers?'
Petitioner refused to answer the question on the ground that his answer might tend to incriminate him. He made a statement in which he claimed that his waiver of immunity was invalid since he had not understood its significance when he signed it, and no one had explained it to him. He expressed doubt as to his status as a witness and his privileges and duties as such.
Petitioner was taken before the County Court of Kings County to clarify his status. It was there held, after a hearing, that the waiver was valid because petitioner had fully understood its significance when he signed it. Petitioner was directed to answer the question which he had been asked. He returned to the grand jury, but persisted in his refusal to testify. He was thereupon indicted for criminal contempt, tried by a jury, and convicted. His conviction was affirmed by the Appellate Division in a short memorandum opinion, 282 App.Div. 775, 122 N.Y.S.2d 478, and by the New York Court of Appeals without opinion, 306 N.Y. 747, 117 N.E.2d 921. The Court of Appeals did amend its remittitur to show that the question of whether petitioner had been deprived of liberty without due process of law had been raised and passed upon. 306 N.Y. 875, 119 N.E.2d 45.
Petitioner contends that this Court must here determine whether the Fourteenth Amendment prevents a State from imprisoning an individual for refusing to give self-incriminatory testimony. In so doing he ignores the crucial significance of the immunity statute in this case. We simply hold that under the circumstances here presented petitioner was not deprived of any constitutional rights in being punished for his refusal to testify.
The immunity statute is crucial in this case because it removed any possible justification which petitioner had for not testifying. If petitioner had not executed a waiver of immunity, it is clear beyond dispute that he would have had to testify; the statute would have provided him with immunity from prosecution on the matters on which his testimony was sought, and thus his testimony could not possibly have been self-incriminatory. The waiver of immunity, although it does affect the possibility of subsequent prosecution, does not alter petitioner's underlying obligation to testify. Much of the argument before this Court has been directed at the question of whether the waiver of immunity was valid or invalid, voluntary or coerced, effectual or ineffectual. That question is irrelevant to the disposition of this case for on either assumption the requirement to testify, imposed by the grant of immunity, remains unimpaired.
First, assume that the waiver was valid. Any testimony which the petitioner gave could then have formed the basis for a subsequent prosecution, and the State would here be punishing the petitioner for his refusal to provide such self-incriminatory testimony. But, since we are assuming the validity of the waiver, such a situation would be simply the result of a voluntary choice to waive an immunity provided by the State.
The waiver of immunity from prosecution may, on the other hand, be regarded as invalid. Petitioner argues at some length that the waiver was obtained by a 'pattern of duress and lack of understanding.' He points to the circumstances attending the signing of the waiver: the size of the room, the number of policemen who simultaneously executed waivers, the speed with which the waivers were obtained, the lack of counsel, etc. He also points to the provisions of the New York Constitution and the City Charter requiring him to sign the waiver or lose his job. In addition he claims that the waiver was stale and thus ineffective since over 21 months had elapsed from the date of its execution to his refusal to testify. We fail to see where petitioner's arguments lead. If the waiver is invalid, the immunity from prosecution persists, and in the presence of such immunity petitioner's testimony could not possibly be self-incriminatory. It must be remembered that this conviction is for refusing to testify. The invalidity of the waiver may be made a defense to subsequent prosecution, where it would be a proper matter for disposition; it is no defense to a refusal to testify.
Petitioner suggests that his refusal to testify may have been justified by the uncertainty existing at the time he was directed to testify. That uncertainty was only as to whether or not he could be prosecuted for criminal activity which might be revealed in his testimony. As a matter of state law, a defense to the crime of criminal contempt may be provided when such uncertainty reaches a sufficiently high point. But the Constitution does not require the definitive resolution of collateral questions as a condition precedent to a valid contempt conviction. Cf. Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542, 84 L.Ed. 783. The petitioner knew that however the question of the validity of the waiver might be resolved, he was obliged to testify. In persisting in his refusal after being directed to testify he could be punished for contempt. The law strives to provide predictability so that knowing men may wisely order their affairs; it cannot, however, remove all doubts as to the consequence of a course of action.
The judgment below is accordingly affirmed.
Affirmed.

## Notes

* ↑ See also New York Code of Criminal Procedure, § 10.
* ↑ To the same effect were §§ 584 and 996 of the Penal Law which dealt with the crimes of conspiracy and gambling. These statutes have since been amended. New York Laws 1953, c. 891.
* ↑ It states that: '* * * any public officer who, upon being called before a grand jury to testify concerning the conduct of his office or the performance of his official duties, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years, and shall be removed from office by the appropriate authority or shall forfeit his office at the suit of the attorney-general.'
* ↑ 'WAIVER OF IMMUNITY
* ↑ The questionnaires never were completed.
* ↑ See Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; cf. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110.
* ↑ Petitioner does not challenge the sufficiency of the immunity provided.
* ↑ There was testimony that the waiver was obtained in a room which measured '10 10, or 12 12, approximately,' containing a desk 'about 60 2' (sic) and a bench upon which 'about five people could sit.' About 35 waivers were obtained in a period of 25 minutes. An assistant district attorney made a single speech explaining the nature of the immunity. Immediately after executing the waiver, petitioner testified that he had signed the waiver voluntarily, that it had been explained to him, and that he understood its meaning. Twenty months thereafter petitioner reaffirmed its execution without raising any objection to its validity. It was some twenty-one months after its execution that petitioner challenged the validity of the waiver for the first time. The trial court left the question of the validity of the waiver to the jury. Its verdict of guilty indicates its finding on this matter. The conviction was affirmed by both appellate courts, but we cannot be sure that the affirmance sustained the finding on this matter for the appellate courts may have viewed the question of the validity of the waiver as irrelevant to their decision as we do to ours.
* ↑ It might be pointed out that, as far as the record shows, this objection was at no point raised below. It appears for the first time in the Petition for Certiorari.
* ↑ People ex rel. Hofsaes v. Warden, 302 N.Y. 403, 98 N.E.2d 579.
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