Earl Warren: -- continue.
David B. Rothstein: Mr. Chief Justice, now, I just want to summarize in a few minutes the -- what we feel we could show if the case were to be remanded in District Court conducted a hearing. We think that we show generally the facts that have been discussed earlier with respect to the existence or non-existence of any statements or reports and in addition, the receipts themselves which we concede our statements but which we contend are too remote in the circumstances of this case to be held to relate to the direct testimony of the witness. Now, these receipts would only show two things, most of them would only show amounts of money paid. The nine would show amounts paid and in addition, certain itemizations. Now, the amounts paid on all the receipts would be reflected and is reflected in the schedule that the Government offered to produce and which was refused by the defense. Moreover, all the testimo -- all that would be shown by these receipts, as to payments received, was already in the record in the form of the direct testimony or the cross-examination testimony of the witnesses, both of whom had, as we indicated earlier, readily acknowledged that they had been paid for services and expenses and they gave the amounts that they had been paid. So that the receipts, insofar as they reflect money received, could not be further used to impeach the impeaching testimony already given by the witnesses. Now, in addition, as we've also indicated, we -- we feel that -- that we can show and that there is substantial reason to believe that the trial court upon examination of the itemizations would agree that considering the overall testimony, considering the nature of these receipts and the itemizations listed, would agree that the items do not relate sufficiently directly to the matters testified about -- by the witness on the -- on his direct examination. Moreover, even if in the two respects in which we have suggested in our brief, at pages, and we've discussed them at pages 33 and 34, that two or three of the itemizations in these receipts might, in a very general sense, be considered to have related to direct testimony to matters about which the witness testified. We feel that there is good ground for the argument that any error, if there was error, in that turning these itemizations over, was harmless and that there was no possible prejudice to the defendant in not having had access to these particular itemizations. And of course, the reason, primary reason for that is that he had the narrative reports that the witness had furnished to the F.B.I. concerning these very activities.
William O. Douglas: Discuss the -- discuss the membership --
David B. Rothstein: Yes, sir.
William O. Douglas: -- involved.
David B. Rothstein: Yes, sir. Now, for those reasons, we think that the Court should remand to the District Court so that a full record can be developed with respect to these matters and of course, the petitioner again as or would have recourse in the event of an adverse decision in the District Court to the appellate process. Now, on the question of the Court's definition or instruction to the jury of membership, what constituted a mem -- membership?
William O. Douglas: May I ask at the beginning that you can answer this at any time you'd like. I don't see a discussion in your brief why we should adopt here a different test of membership under this statute than the Court adopted in Scales case that was foreshadowed by Yates neither of which are discussed in your brief, you can come at that --
David B. Rothstein: You mean the activity fact?
William O. Douglas: Yes. Why -- what the Court was -- what it's paying in the Scales to indicate that your nominal membership, passive membership could not have been within the purview of the Smith Act and there were passages indicating the constitutional overtones of -- that were present there and I -- I wondered why -- why that isn't discussed here?
David B. Rothstein: Well, Your Honor, I think that the purposes and effects of the statute are different and bring into play different considerations on the First Amendment.
William O. Douglas: Well, maybe so but I mean --
David B. Rothstein: But I think --
William O. Douglas: -- but it isn't obvious.
David B. Rothstein: -- basically, basically, the fundamental distinction is that under the Smith Act, the -- the membership with the other elements is the -- is a criminal offense. Whereas, this statute that we have involved in this case --
William O. Douglas: Or statement statute but it rests on sta -- stating that you're not a member when you are.
David B. Rothstein: That's -- that's right, sir.
William O. Douglas: But it come back --
David B. Rothstein: But the statute itself, the statute --
William O. Douglas: -- come back to the question of what is membership. Is it active? Is it passive? Is it any kind? Is it nominal? Would nominal membership be sufficient?
David B. Rothstein: I think, Your Honor --
William O. Douglas: Would a member --
David B. Rothstein: -- that a -- that a definition of membership similar to that --
William O. Douglas: Would a membership --
David B. Rothstein: -- do it in no way --
William O. Douglas: -- suppose you're --
David B. Rothstein: -- would be the appropriate (Voice Overlap).
William O. Douglas: Suppose you -- suppose you had proof that a membership -- the -- the membership of a particular individual was membership because of his -- his belief in some wholly lawful activity of the party and his renunciation of illegal activities in the party, would that be enough? We -- we --
David B. Rothstein: I think if he was knowing purposeful membership that would be enough under the statute. It was his (Voice Overlap)--
William O. Douglas: The Government had presented in the Scales case too, but didn't succeed that.
David B. Rothstein: Well, I --
John M. Harlan II: (Voice Overlap) different kind of a statutes in Scale, is that your point?
David B. Rothstein: That's right, sir. Scales --
John M. Harlan II: (Inaudible) Scales had do to with membership in an organization that was devoted and only that kind of membership, it had (Inaudible) Government by enforcing violence --
David B. Rothstein: Yes.
John M. Harlan II: -- it does membership in the Communist Party hearing?
David B. Rothstein: That's right, sir. And of course, the statute does not say --
William O. Douglas: It's the same party --
David B. Rothstein: -- (Voice Overlap) membership in the communist party.
William O. Douglas: It's the same part --
David B. Rothstein: The statute --
William O. Douglas: -- it's the same party though, isn't it?
David B. Rothstein: That's -- that's right, sir. But the statute -- the purpose of the statute is to impeach so far as possible the Communist Party as an organization from exercising influence in labor unions in such a fashion as to put it in a position to interfere with interstate commerce. The statute is not directed primarily and its purpose is not against the individual member.
William O. Douglas: But how about the oath provisions of the -- of this (Voice Overlap)?
David B. Rothstein: Well, the oath provisions, of course, refer to an organization that teaches and advocates the overthrow.
William O. Douglas: While -- the ones that (Voice Overlap) the one that --
David B. Rothstein: So that you would have to show knowledge one part of the person.
William O. Douglas: One that we -- one that we have in the Douds case. You construe the oath provisions. It's not parallel to the membership provisions of this Act? These are large questions. I don't think (Voice Overlap).
David B. Rothstein: Well, Your Honor, I think that -- the statute deals with two things, membership and the party, for our purposes anyway, membership and the party or membership in an organization which teaches and advocates a violent overthrow. Now, the Congress found that the Communist Party had reason to find it. Communist Party was of -- of such a nature that it likely would interfere with interstate commerce through exercising its influence over its members who were union officers. That is the -- is the legislative basis for the statute. In a situation where you had an organization which teaches and advocates the overthrow and -- and the member signing the affidavit, of course, it would be a question of proof, you would have to show knowledge that the person executing the affidavit had knowledge that the organization of which he was a member did teach and advocate. I don't think that's necessarily so where the Communist Party is concerned with respect to Section 9 (h). Now, I -- I think the problem that you can't show --
William O. Douglas: Well, how about -- how about subdivision (11) of Section 5, "Has indicated by word, action, conduct, writing, a willingness to carry out in any manner and to any degree of plan, of objectives or designs"?
David B. Rothstein: Well, the --
William O. Douglas: Those designs, objectives may not be unlawful that they may have lawful objectives, is not that right?
David B. Rothstein: Well, the -- these, of course, are only some of the criteria which the Court instructed the jury, can --
William O. Douglas: I understand.
David B. Rothstein: -- or should be taken into consideration. I don't think that -- I mean, many of these, standing along, would not support the ultimate conclusion that the person was a member because he did one of these things. But these are certainly rational criteria to take into consideration in coming to the conclusion of whether or not an individual was or was not a member of a particular organization. The fact that he attended meetings, the fact that he was an officer, the fact that he executed orders, the fact that he submitted himself to discipline of the organization, all those things, I think as a -- as a matter of logic, should be taken into consideration by any fact finder in deciding whether or not the particular defendant was a member of the party. And of course, I think contrary to what has been argued by -- for the petitioners and in certain respects by the amicus, the Court did not permit the jury to conclude that membership was proved by anyone of these elements.
William O. Douglas: Yes, but they denied instructions. The Court denied instructions that would have as taken out of the jury's purview the issue of nominal membership or passive membership.
David B. Rothstein: Well, they didn't -- they didn't, as I understand, they didn't ask for that instruction, Your Honor. They asked for an instruction --
William O. Douglas: Well (Voice Overlap) not -- not precisely the phraseology of Scales but in substance whether or not it was -- it was active or whether they were -- they merely adhere to lawful activities.
David B. Rothstein: Well, as I understand their requested instruction, it was.
William O. Douglas: You -- you find it, I just read that it's --
David B. Rothstein: It was to the effect that they wanted the Court to charge the jury that they had to find that he was devoted to the unlawful objectives of the Communist --
William O. Douglas: Well --
David B. Rothstein: -- Party, the teaching and advocacy of overthrow.
William O. Douglas: There was that -- there was that also.
David B. Rothstein: And we don't know the statute requires that, un -- under this Court's decision in Douds. I think that it -- it must be a meaningful knowing full membership. It can't be at nominal membership. I think the (Inaudible) principle is probably more comparable to this situation than is this Court's decision interpreting the Smith Act under Scales. Thank you.
Earl Warren: Mr. Pollitt.
Basil R. Pollitt: Mr. Chief Justice and --
Felix Frankfurter: Where you at the trial, Mr. Pollitt?
Basil R. Pollitt: No, I wasn't, Your Honor.
Felix Frankfurter: But you can tell me -- was --
Basil R. Pollitt: I know this record are used to pretty well before I stopped there.
Felix Frankfurter: -- was there a consecutive -- was there a charge by the trial court other than granting of request respectively by the -- by the defense and the prosecution? Did you make a consecutive charge with the jury at anytime?
Basil R. Pollitt: No, the various request for --
Felix Frankfurter: Yes, but --
Basil R. Pollitt: -- but there was no -- I --
Felix Frankfurter: A part from --
Basil R. Pollitt: I had to --
Felix Frankfurter: -- my question was whether apart from submissions for request to charge, apart from request to charge, some of it he granted, some of which he didn't.
Basil R. Pollitt: Apart from --
Felix Frankfurter: Apart from the things that he granted, did the judge make any -- give any charge of his own?
Basil R. Pollitt: I think it would be a fair statement that outside of some of the foreign books of charges, instructions that concur at every charge --
Felix Frankfurter: But -- but they -- none of them originated from him, they were all submitted by the party.
Basil R. Pollitt: I believe so.
Felix Frankfurter: So that nothing originated from him.
Basil R. Pollitt: I'm informed, that's correct.
Felix Frankfurter: And he just have charged about circumstantial evidence, the next about affiliation and the next about informer and they wholly unrelated tidbits, pieces and --
William O. Douglas: As I read the record, they were handed up of separate sheets and he --
Basil R. Pollitt: Yes, Your Honor.
William O. Douglas: -- he rejected some and took others and -- and read them all to the jury.
Felix Frankfurter: But he -- but he didn't weave it into one charge, is that correct?
Basil R. Pollitt: It's a reasonably disjointed charge, Your Honor.
Felix Frankfurter: Pardon me?
Basil R. Pollitt: It appeared to me that reading it in the record that it was -- is disjointly charged.
Felix Frankfurter: That's -- it's bits and pieces, bits and pieces and nothing of his own.
Basil R. Pollitt: Well (Voice Overlap) --
Felix Frankfurter: And nothing of his own (Voice Overlap).
Speaker: Well, it is --
Basil R. Pollitt: That's -- that's not quite fair, nothing of his own composition.
Felix Frankfurter: I don't mean -- I don't mean he did not -- he -- I seem to have difficulty in making myself clear. Both sides handed up request to charge. He denied some and granted some. But apart from the grants that he made, nothing originated with him.
Basil R. Pollitt: Yes, Your Honor.
Felix Frankfurter: Alright.
Basil R. Pollitt: The --
John M. Harlan II: Is the whole charge printed however --
Basil R. Pollitt: Nothing (Voice Overlap) --
John M. Harlan II: -- is characterized? No, not printed, is it in the -- in the minutes?
Basil R. Pollitt: It's in the minutes.
Felix Frankfurter: But --
Basil R. Pollitt: Past the request to charge.
John M. Harlan II: And didn't he start off by -- I haven't looked at it yet but isn't it a charge in the conventional form when you agree with the charge or not? As you say now it's my review, instruct the jury and then go on?
Felix Frankfurter: No, that's the answer.
Basil R. Pollitt: Well --
John M. Harlan II: You say he does not?
Basil R. Pollitt: Well, it appears -- it appears that he would read the following charge was submitted by --
Felix Frankfurter: Have been requested and I grant it?
Basil R. Pollitt: Yes, it was requested and I grant it.
Charles E. Whittaker: You mean -- you mean he told the jury I have been requested to give certain charges and I'd give them or deny them? I've read the charge --
Basil R. Pollitt: I'm informed that's not the case, Your Honor.
Charles E. Whittaker: -- it does not say that.
Speaker: Could you (Inaudible)
Felix Frankfurter: I'd like to be clear about this because the document that is on file with this Court contains no consecutive elocution by the judge to the jury. It merely give respective bits that there was submitted respectively by the -- by the prosecution and by the defense, isn't that correct?
Kevin T. Maroney: If that is my memory, sir.
Felix Frankfurter: Well -- but just look at the document. Why do you -- do we have in your arms up on a memory.
Hugo L. Black: Have you jus -- justify that it's (Inaudible) on the point (Voice Overlap) appear.
Kevin T. Maroney: Yes, specifically we did not inform the crowd or did not inform the jury that I have allowed this one or rejected that one. We read them one after the other.
Felix Frankfurter: Without -- without any relation of the different parts to one another except that is they all have to do with the case. At least that's the way they appear in the stenographic minutes. I don't know what -- that's why I'm asking counsel what present -- what took place.
Kevin T. Maroney: I think -- I -- I trust the minutes accurately reflect this fact. And my memory -- if my memory actively reflects the fact but I would want (Inaudible) I suppose.
Earl Warren: Mr. Maroney, do you -- do you agree with counsel that the -- that the instructions, as they appear in their transcript, reflect what actually happened?
Kevin T. Maroney: Well, I've -- I've no reason to think otherwise, Your Honor.
Earl Warren: Yes, well that's all we could answer.
Basil R. Pollitt: With brief reference to Section -- to number 11 of the indicia which we used in argument to highlight a pervading error of all the indicia, I'd simply like to say in response to the Government's argument that it's my understanding of the Stromberg case, the Herndon case and the Winters case that when First Amendment -- the First Amendment rights of the defendant maybe entrenched upon, the question is not whether or not there is evidence which supports the verdict but whether or not under the instructions, the jury could have rested its verdict on those First Amendment rights, which I think is the case here. Turning briefly to the question of Section 9 (h), the purpose and the meaning of membership in that Section, the forepart of the oath seems on it's face provide for guilt by association and that was argued before Your Honors at one time. And to violate the doctrine that guilt is personal because members, all members of the Communist Party seemed to be denominated. But as I read the opinion, the various opinions in Douds, if the oath is to be upheld at all, it can only be upheld because the kind of membership and the kind of affiliation involved involves a personal commitment to the political strike. That was what we ask the Court to give and that was refused and we submit that the definition of membership and I might add the definition of affiliation, both of which fall short of that personal commitment. That -- I beg your pardon. I don't mean personal -- I mean personal and organizational commitment, organizational involvement which means that personal commitment. And if it fall short of that, it doesn't meet the standards laid down by any of the six Justices on this Court who voted to uphold the forepart of the oath. Turning now to the notes, the memoranda of which were destroyed, first of all, we'd like to clarify any doubts that maybe about -- as to our position. This was evidence. This was produceable evidence before Jencks, produceable evidence after Jencks. In the argument of (Inaudible) which requested in your opinion, Mr. Justice Brennan, but the one, the Government conceded that we could, at all times, have called the F.B.I. agent who took these memoranda. And since these memoranda were made in the regular course of business, it's his duty and his practice to make such memoranda. We could have subpoenaed those memoranda. So that it was evidence that the Government destroy even before Jencks. Of course, under Section 3500, the Government concedes that these notes could, these memoranda could have been within this Section. And once that concession is made, under the Campbell case decided last term, if those notes had existed, it would've been the duty of a trial judge to have -- to conduct a judicial inquiry into whether or not they can within the scope of Section 3500. So that what the Government destroyed here was evidence whether it was before or after the Jencks decision, and by the way Your Honors, we raised this position before Jencks. This was not afore to in this alliance -- reliance. We insisted from the word "go" in his first trial that we were entitled to un-break his memoranda. So that what the Government has done here is destroy and the police agency is to destroy potential evidence. Our position is very simple, they have no rights or to do.


Earl Warren: Number 13, Edward J. Garrity et al., appellants versus New Jersey. Mr. O'Connor.
Daniel L. O'Connor: Mr. Chief Justice and may it please the Court. The case which we are considering now is on appeal from the Supreme Court of the State of New Jersey. There are two cases which have been consolidated on this appeal both of which involved practically the same set of facts and the issues are identical. The cases below involved police officers who were serving the boroughs of Bellmawr and Barrington in the State of New Jersey. In the first case below, the appellants Garrity in virtue were indicted, tried and convicted. There was a third defendant in that case a Mrs. Naglee who is not a party to this appeal by reason of the fact that she was deceased. The second case involved three police officers of the borough of Barrington, Mrs. Holroyd, Elwell, and Murray. As I've stated there's no basic dispute as to the facts in the case but because this case was allowed by this Court and jurisdiction -- the question of jurisdiction was deferred pending oral argument, I feel it necessary to go into the background before I reach the argument on jurisdiction. This case had its inception in an order of the Supreme Court of New Jersey dated June 30, 1961 or in it directed the Attorney General for the state to conduct an investigation into the practice of downgrading traffic ticket violations in these two boroughs namely Bellmawr and Barrington. Both order -- the order to investigate both boroughs was signed on the same date and the Attorney General designated one of his deputies to conduct the investigation. During the course of the investigation, it became necessary to take oral testimony of the defendants. The New Jersey in 1953 enacted a state statute which became very pertinent in the taking of the statements in which is the reason why we're here today. Briefly, that statute provided it's denominated the generally is the official conduct statute and statutes of this type are not strangers to this Court. It provides briefly, that any person holding public office who haven't been sworn, refuses to testify or to answer any material question upon the ground that his answer may tend to incriminate him or compel him to be a witness against himself shall if holding public office be removed that forfeit his office, position or employment and any vested or future right or tenure, and pensions granted to him. That then goes on provide that he shall not be eligible to hold public office in the State of New Jersey for ever after. Now, prior to taking the statements and after swearing the defendants, the investigating Deputy Attorney General gave a warning in which he advised each defendant of his right not to incriminate himself but explain to them that if he -- if they made a disclosure then they would have to answer questions on all other -- answer all other questions which were asked. And then after advising them of their right not to testify, he went on to nullify that right by saying, “but because you are police officers and there is a statute in this state which requires you to testify and if you don't then you will lose your jobs.” Now, that warning all defendants testified. They incriminated themselves by explaining the method of how tickets were downgraded and subsequently the state -- the State Supreme Court of the Attorney General's office referred the results of the investigation to the Camden County Prosecutor for presentation of the grand jury. The grand jury indicted --
Potter Stewart: That warning that you refer to presumably emphasize there's an accurate statement of the Jersey law, wasn't it in the statute?
Daniel L. O'Connor: It was an accurate statement of the law insofar as it went and as far as the statute was concerned, yes. There's no question about that. In other words, what he and thinks and said what exactly what the statements says. In other words, the statute says that if you refuse to testify and you are holding public office then you shall be removed from office. The wording of the -- I'll read that just a little bit later because I want to read encompass in my argument the exact statement which was warning which was given. They were indicted on a charge of conspiracy to obstruct the due administration of the motor vehicle traffic laws of New Jersey. There was a trial at the trial after the introduction of evidence by the prosecutor. The introduction of these statements became an issue. In the trial court for the extensive argument from the prosecutor, from defense counsel and participated in the argument and discussion himself as to whether or not this particular statute and the warning given was compulsory and whether or not the statements were voluntary. The trial judge ruled that the statements were voluntary admitted them into evidence. They were read to the jury. Defendants were convicted and they filed a motion for a new trial. The motion for the new trial and at this juncture the Garrity case was tried first, the Holroyd case was tried second, when the motion for new trial was made they were consolidated and stipulations were entered by trial counsel in both cases at the issues were the same. So the trial judge in considering the motion for new trial considered both cases together. He rendered -- the motion for new trial was denied. But he rendered an opinion quite to link the opinion which appears at page 545 of the record and he touched specifically upon the constitutionality of the statute and as it related to the warning and to the admissibility of the statements of voluntariness of the statements. He goes on at length in reviewing the Twining case. He reviews the Adamson case and he quotes at lengths from Mr. Justice Black's dissent therein and in my opinion the frustration of the trial judge in not being able to hold the statute unconstitutional. It displayed in one paragraph of its opinion and I would like to read it to the Court. This in on page 547 of the record, “This Court is -- and this is a trial judge speaking, “This Court is also aware that the Adamson case was at five to four decision and that since 1947 notable expansion of the Due Process Clause has taken place. Then he goes on in spite of the above dissent referring to Mr. Justice Black's dissent and the continual broadening trend of the Due Process Clause a trial court must take the laws that finds it and cannot create new law at this level. It follows therefore that the statute does not violate the federal constitution. I say and I think in all sincerity that the trial judge encountered a frustration there because it was his desire and his wish to declare it unconstitutional but because of the laws that stood at that time he was unable to. From the trial court, an appeal was taken and in the appellate division which is an intermediate appellate step in the New Jersey jurisdiction. The Supreme Court of New Jersey reached down and certified the case to itself, it heard argument from counsel, it considered the briefs and I must say the argument of counsel, the briefs of both parties, all touched upon the constitutionality of the statute. In the opinion of the Supreme Court of New Jersey, they made two findings which are extremely pertinent to us to here today. One was that this statute created a type ought to be warning given by the Attorney General was a type of compulsion which could be legitimately used and then it went on and considered the constitutionality of the question and avoided that issue by finding that the defendants had no standing to question the constitutionality of the statute. Now, that brings me to the question of the jurisdiction of this Court to consider this matter. The appeal was taken under Section 1257 subparagraph 2, Title 28 and in order for jurisdiction to attach to this case. There are two factors which must be met. One is, was the constitutionality of the statute and the issue in the courts below and secondly, did the state court render an adverse finding? It's our contention that both factors are present at this trial. The trial judge made an expressed finding which I have read to the Court. The Supreme Court even though it was raised on appeal and argued both in oral argument and brief. The Supreme Court avoided the issue by saying that the appellants did not, were not in a position to challenge the statute. And I'd like to read from page 327 of the record, the exact language of the Supreme Court of New Jersey in that connection. It's very short. The defendants further contend that New Jersey statute 2 (a) 8117.1 is unconstitutional. As we have mentioned earlier in this opinion Mr. Reg, that's the Attorney General that took that statement and did not expressly threaten to invoke the sanction of the statute against the defendants Garrity in virtue. The warning he gave them was to the effect that if they did not cooperate in the investigation they might be subject to dismissal as a result of a subsequent proceeding. We determined that such a dismissal would be proper even in the absence of the statute. Therefore, we conclude that the defendants in the circumstances of this case are not in a position to challenge the constitutionality of the statute. What the Supreme Court did, it avoided meeting the constitutional issue and set itself up as the final arbiter as to who can raise a constitutional question. That is a prerogative of this Court as to what citizens of the states can raise the constitutional question. The Supreme Court cannot avoid it and this Court must accept that. In other words, it has done indirectly what it did not want to do directly. Now, on this appeal, there are three principle questions raised. One is the constitutionality of the statute. The second is the admissibility of the statement in evidence during the trial and the third is a question as to whether the Supreme Court of New Jersey could properly review as non-judicial act in which it participated. The first question is squarely within the jurisdiction of the Court. It meet all -- meet both factors as required by Title 28. The second question is so intertwined with the first that it cannot be separated because if the first question, if an answer to the first question the Court finds that the statements were involuntary then it naturally follows that the admissibility of those statement in evidence was depravation of due process. The Court -- third question we concede is not within the appellate jurisdiction of this Court but it is of such significance that it could be considered. The second and third questions can be considered because they deny of federal right and if the first question is a properly -- with it properly within the appeal jurisdiction of the Court then because the other two questions are of real substance and have denied a federal right then they can be considered by this Court. Lastly, as far as jurisdiction is concerned in the even this Court should decide that the first question is not within the appeal jurisdiction then the appellants rely on Section 2103 of the Code which provides for certiorari in matters where the -- in themselves would be subject to certiorari. I now leave the question of jurisdiction and I turn to the principle question of argument today and that is the constitutionality of New Jersey's statute 2 (a) 8117.1. This case challenges the use of the statute to extort or extract so-called voluntary statements from defendants and at this time I want to read to the Court the warning which was given to the defendant Holroyd. The Deputy Attorney General prefaces remarks as follows and I'm reading from page 10 of the brief. Question, All right, under a Supreme Court order dated the 20th of June 1961, I have been directed to investigate irregularities in the handling of municipal court vehicle matters in the borough Barrington and how they have been handled by the court and local police departments. As a result, I have asked you to come here today so I may put questions to you. Answer, Yes. Question, I want you to fully -- to realize fully however, any answers you give must be voluntary without any coercion, threat, or promise of reward and those answers may be used against you or any other person. You have a privilege to refuse to disclose any matters which might tend to incriminate you. However, if you make such a disclosure, you thereby waive your right or privilege in relation to any face of this investigation in the future. Now, we get to the pertinent part. Under our laws, as a police officer, you are subject to a statute which provides however if you exercise this right or privilege a proceeding may be instituted against you to have you remove from office. Knowing all of these, you're willing to proceed. I think the courts of this case rest in the Supreme Court of New Jersey's finding that this was a type of compulsion which could be legitimately used. And here the Court is admitting that compulsion was used and question that to be answered is, has this Court or the Fifth Amendment privilege or the Fourteenth Amendment guarantee of Due Process ever acknowledge any degree of compulsion. In other words, can the privilege at the whim of the court by declaring degrees of compulsion nullify this privilege? I don't believe that the compulsion of any type can be tolerated by the Fifth Amendment nor do I believe and is recognized just like the Fifth Amendment does not distinguished between race, creed, or color, social standing or otherwise. I know that the Attorney General, the Deputy Attorney General in giving the statement probably felt that he was giving to those defendants information concerning the laws of the State of New Jersey. But one thing that he did was mislead them to the extent of saying you may be subject to a proceedings to have you removed. There is no room in the statute for a may or maybe. The statute is not permissive, it is mandatory. It says shall be removed and the State of New Jersey and two of its own --, the Supreme Court of the State of New Jersey and two of its own cases, Lava versus North Board of Education and Lowenstein versus North Board of Education has interpreted this statute to be mandatory. Both of the cases are cited in the briefs so I won't give the citation but I'd like to read from the Lava case. And this involved a fitness hearing on a school teacher by the North Board of Education and the Supreme Court in reviewing the applicability of this particular statute to that proceedings it says, it does not of course restrict the preexisting power of a supervisory school authority to conduct an inquiry in to the continued fitness of a teacher but seemingly has the additional effect that if during the course of such an inquiry there's a refusal to answer which falls within all the pertinent terms of the statute. Then, dismissal is mandatory and in the law in Lowenstein case which was decided some four years later in 1961 and which likewise had the question of a teacher's dismissal of conduct unbecoming a teacher the Court commented and interpreted its own decision in the Lava case and in comment on the Lava case the Court held the inquiry approach was premised on the obligation of a teacher to respond fully without any right to rely on a constitutional privilege.
Abe Fortas: Mr. O'Connor, is it all in conflict with previous position, a decision charged a little earlier? As I understand in your saying that the reference of these petitioners to the disposal statute constituted a threat and now you're saying that the reference was quite as tough as the statute in reality is, is that --
Daniel L. O'Connor: The threat -- the warning referred to the statute. The warning said, as police officers you may be removed or as the Supreme Court says, it is mandatory -- Supreme Court of New Jersey says, it's mandatory.
Abe Fortas: I understand that what your legal point is the result of the -- what point are you submitting to us is the result of that -- and the petitioners were mislead?
Daniel L. O'Connor: Well, I'm saying that the investigating officer attempted to mislead. He gave the warning and then instead of saying, you will be out of your job if you refuse to testify. He said, you may or may be subject to this proceeding.
Abe Fortas: The first part was that he was intimidating by calling their attention to the warning to the dismissal statute.
Daniel L. O'Connor: There's no question about the intimidation. The defendants were well aware of the statute. They were well aware that it was mandatory.
Abe Fortas: You're not making a point that they were -- that the statute we should reverse here because the witnesses were --
Daniel L. O'Connor: Mislead?
Abe Fortas: -- incriminating?
Daniel L. O'Connor: No, no I just called that --
Abe Fortas: Or mislead which is -- that is your point? What is your point, are you urging that we should reverse because the petitioners were mislead or because they were --
Daniel L. O'Connor: Because of the threat. The threat which was given under the statute they would be out of a job. In other words, anything that proceeded in this inquiry was under the rest and coercion by reason of the fact that the defendants had no choice. They either talk or they were out of their jobs.
Abe Fortas: There's a fact that the statute existed some statute was mentioned to petitioners like any difference. Would your point be the same?
Daniel L. O'Connor: I think that it just embellishes the threat.
Abe Fortas: That is the very -- what you're doing is to attack the very existence of the statute.
Daniel L. O'Connor: That's right.
Abe Fortas: You're saying that the very existence of the statute --
Daniel L. O'Connor: It's coercive, it's compulsive.
Abe Fortas: Coercion.
Daniel L. O'Connor: The mere fact that it's on book of every public employee of the State of New Jersey is under this --
Abe Fortas: Well, what actually happened here is that the petitioners did testify.
Daniel L. O'Connor: They did testify.
Abe Fortas: And they were not fired.
Daniel L. O'Connor: They were not fired. They were fired after conviction. They lost their jobs after conviction. But this is a settled use of the statute to obtain confessions and then use those confessions in the conviction of the individuals.
Abe Fortas: Well, then you're saying that appears through several layers here, don't we in causation. You're asking us to set aside the judgment on a count of the trial -- on the count of after trial their statement were used and because those statements were subject to the impairment that's the existence of the statute that comes to coercion.
Daniel L. O'Connor: Well, the defendants had no choice Your Honor. The investigating officer put it to them. What he did, he said, look, you have the right not to testify but if you exercise that right then the effect of the statute comes to bear and you're out of your job. So they had no choice. They didn't have the freedom of choice at the very threshold that's said in Malloy versus Hogan of the unfettered exercise of their own free will. They had to choose a lesser of two evils. There was no freedom of choice. This statute is compulsory in its inception and its objective and I would like to read to you the legislative history in connection with this. This statute had its inception with the Chicago Crime Commission and the counsel of state governments back in 1953 after the spectacle before the Keith law firm and McCarthy committees of public officials, hoodlums and racketeers appearing before them and taking the Fifth Amendment and this -- the legislative history, this is the report of the state legislature at the time the bill was enacted. And I'm reading from appendix 1 (a) of the brief. It is proposed by this bill to remove the impediment to investigation which is contained in constitutional provisions protecting the privilege against self-incrimination. It would penalize any person who refuses to testify on matters relating to his office on the ground that his answer might tend to incriminate him or by requiring that he forfeit his office and be prohibited from whole and further office referred to five years. It is been argued that the bill and effect now applies the constitutional protection against self-incrimination for the public official involved. They may exercise their privilege but to do so involves the loss of their primary livelihood. So, any public official with the statute such as this on the record books when he is involved in an official inquiry he has no freedom of choice whatsoever and this is a criminal proceedings. This is not a similar proceeding, this is a criminal proceeding.
Byron R. White: But do you really care whether the statute is involved here or not?
Daniel L. O'Connor: I beg your pardon.
Byron R. White: Do you really care whether the statute is involved here or not?
Daniel L. O'Connor: Well, I think the statute is very much involved.
Byron R. White: I know you think but why do you care whether it is or not?
William O. Douglas: Not in here.
Daniel L. O'Connor: Well, I think so, yes. If the statute were not involved why there wouldn't be appellate jurisdiction.
Byron R. White: I know but the only reason you care about that is you want the case here and you want to decide it. What if somebody said, we'll repeat the certiorari -- the cert?
Daniel L. O'Connor: No, I think this Court -- if this Court has treated --
Byron R. White: I mean the statute doesn't add anything to the warning, does it?
Daniel L. O'Connor: But it's the use of the statute, it's the use of the statute --
Byron R. White: Let's assume there was no statute at all and the same thing happen, assuming no statute, there was no reference to -- assume no New Jersey statute on the question of at all, the district attorney just called the police officer, he'd be fired if he didn't answer.
Daniel L. O'Connor: Then you say and go to the voluntariness of state?
Byron R. White: Yes. Well, isn't that your argument here?
Daniel L. O'Connor: In essence, it is but the removal of the statute -- I mean, this statute has been before the Court in enormous occasions and this to our knowledge is a first time it's been used to extract statement and statements were given.
Byron R. White: Yes, I know but it doesn't add anything to what to the district attorney's statement. You know this is good argument if there wasn't a New Jersey statute at all.
Daniel L. O'Connor: Well, that the investigating officer wouldn't have the statute to rely on to compel him to testify.
Byron R. White: It relied on it.
Daniel L. O'Connor: Well, he didn't call it by name but he referred to it specifically. We have a statute which requires you to testify.
Byron R. White: Well, a New Jersey Supreme Court can testify.
Daniel L. O'Connor: Well, that's what I say to New Jersey Supreme Court avoided. The New Jersey Supreme Court went off on tenure of some high duty that the police officers suppose to have to testify under any circumstances.
Byron R. White: Well, I'll put it this way --
Daniel L. O'Connor: But this high duty doesn't -- we don't reach that here.
Byron R. White: I'll put it this way, the reversal in this case doesn't depend on our finding of the New Jersey statute was involved and was upheld.
Daniel L. O'Connor: I think it can be argued that way but I do think that statute is very much involved. And I --
Byron R. White: I think its (Voice Overlap) if you would be willing to say that if the statute doesn't -- we don't think the statute is involved which you referred.
Daniel L. O'Connor: If you don't think the statute is involved should affirm, no. I wouldn't make that confession. No, I think the statute is involved 100%. I think that's the crux of the case because if it were not for this -- if it were not for the statute, these statements would not have been obtained. There possibly would never been a trial in the courts below. We wouldn't be here today. It's a mere presence to the statute on the books -- on the statute books of New Jersey that has brought us here. No, I don't agree with you Mr. Justice White.
Earl Warren: Well, would you agree within to this extent that your position would be if there was no statute that the fact that this warning was given by the Attorney General to the effect that if he didn't testify there might be a proceeding against him so far as his job is concerned and he gave it because of that threat that you would still be entitled to --
Daniel L. O'Connor: Well, this -- Mr. Chief Justice, this goes to the long line of cases involving police officers and removal of office by reason of unfitness for duty or disobedience and subordination or something. And the Supreme Court touched on all those cases. It didn't meet the real issue.
Earl Warren: Yes, that's fine.
Daniel L. O'Connor: And that's why I say that the statute can't be isolated from the warning because of mere presence of the statute on the statute but was a coercion and compulsion which these police officers were subjected to if the statute wasn't there, sure, they take it to their chance before a trial board maybe. But this statute and these are men that had 15, 16 years to service and they had real pension rights. So, no, I think the statute is very much involved and in any warning without the statute, the fact that -- see, they knew it's mandatory that they be removed from their jobs.
Earl Warren: Yes.
Daniel L. O'Connor: This was the point where they could take their chances for a trial board or something like that.
Earl Warren: Well, let me ask you this, do you concede that if there wasn't the statute and this same warning had been given and he had testified and the other things had resulted that you would lose here?
Daniel L. O'Connor: I can only speculate as to what would've happen at the time and my speculation would be that they wouldn't have given the statements. See, that's the only thing. In other words, this is an accomplished fact now.
Earl Warren: Yes.
Daniel L. O'Connor: And if that statute was not on the books and this threat of the loss of the livelihood hanging over their heads and this attorney general or asking them questions and he gives them their warning and he says, you maybe subject to a trial board proceedings. I would weigh that they would not testify. They take their chances for the trial board but by the mere presence of the statute, then they gave their statement. So, that's why I say that the statute cannot be removed from consideration of this case. I see my five-minute warning and I see and I have one last point that I want to touch upon and that's the non-judicial action of the Supreme Court of State New Jersey. This point is raised for the first time here. I'm well aware of the precedents of the requirement that this Court does not consider matters that have not been considered in the courts below. But it seems to me so contrary to our concepts, democracy and justice under our constitutional government that any time a state Supreme Court initiates an investigation, conducts the investigation, reviews the results of those investigations and undoubtedly pre -- had a preconception of guilt refers those investigations to a prosecutor for grand jury action and after trial and conviction takes the case into itself and sits in judgment on its own preconceived ideas is a matter which presents the serious challenge to this Court. I don't think any court in any state of the union should act as investig – complainant, investigator, prosecutor, and a court of last resort. It's so foreign our concept of justice that I was shocked when I was brought into this case (Voice Overlap).
William J. Brennan, Jr.: Well, wait a minute, that's all pursuant to a system in the judgment and of which the municipal court was subject to the supervision of the supreme courts, that what I think.
Daniel L. O'Connor: I understand that and I've read the brief of --
William J. Brennan, Jr.: All of these instances of difficulties in the municipal courts where the 500 of them indicate this is just a system by this that are investigated to administrative directors today.
Daniel L. O'Connor: Mr. Justice Brennan, with all due respect to the system that exist in New Jersey and I'm certain that the system exist in others of the 50 states similar to that that this act there has to be found --
William J. Brennan, Jr.: I'm not speaking about the act. I thought you were complaining about the use of the Attorney General that they can --
Daniel L. O'Connor: This act -- no, this act of the Supreme Court should be reviewed and this Court should consider. It's a real challenge. Frankly, I don't know how to go about it, what solution to recommend.
William J. Brennan, Jr.: You mean, it is a federal constitution infirmity in a system under which the Supreme Court of New Jersey to which it administers director's office, supervises the fiscal affairs of the municipal courts.
Daniel L. O'Connor: In matters of involving potential criminal violations, it should be referred to --
William J. Brennan, Jr.: That's what I want to say --
Daniel L. O'Connor: To the executive for investigation, yes. In other words, they have to remain a loop.
Byron R. White: Why wouldn't to the interest of your client be added to detected if all there's a court rule was any evidence is obtained and this method -- by this method is inadmissible at the trial. You just can't (Voice Overlap) this evidence.
Daniel L. O'Connor: That's one solution but I don't think it's the whole solution Mr. Justice White.
Byron R. White: Well, I know but you're complaining that this man has been convicted by the use of evidence that was coerced.
Daniel L. O'Connor: Yes.
Byron R. White: Now, if we take you at your wording say yes there was coercion here. This conviction is reversed, that's all you've asked us to do.
Daniel L. O'Connor: If you want to give me that (Voice Overlap). I beg your pardon.
William J. Brennan, Jr.: You want us to strike down the statute and you want us also to strike down the whole system of supervision of the judges of Supreme Court power, in addition to relieving your client of the conviction.
Daniel L. O'Connor: That's right.
William J. Brennan, Jr.: That's asking for a lot.
Daniel L. O'Connor: That certainly it is. It certainly is. Thank you very much Mr. Chief Justice.
Earl Warren: Mr. Handler.
Alan B. Handler: Mr. Chief Justice, may it please the Court. Because of the relative shortness of time, I would propose to emphasize the argument that the admission of a testimony of the appellants was a violation of due process. And the course of that argument I would hope to make clear that I think that this Court lacks appellate jurisdiction with respect to the last point --
William J. Brennan, Jr.: Mr. Handler, why, why waste your time on that clearly if we do? We may still treat the jurisdictional statement for certainty.
Alan B. Handler: Yes, and I certainly cannot be dogmatic in saying that it's not an important -- an importance of statute.
William J. Brennan, Jr.: Well, didn't we postpone jurisdiction on this Court?
Alan B. Handler: Yes.
William J. Brennan, Jr.: Well, really you got more if I may suggest to that I think you have more serious question about it --
Alan B. Handler: Well, this is what I propose to do Mr. Justice Brennan. Now, of course I can see that the appellant's consider it essential to their argument that the statute 2 (a) 8117.1 be considered as involved.
Byron R. White: Do you?
Alan B. Handler: I don't think it is involved and I think that the --
Byron R. White: I know but do you think it's critical for their argument to the state? They may say so but what do you think?
Alan B. Handler: I think it does color their arguments significantly and I think without --
Byron R. White: Well, --
Alan B. Handler: Well, without the force and effect of that statute, I think that the Court must then consider whether or not as a factual matter there was coercion and the interrogation such as to vitiate a subsequent testimony.
William J. Brennan, Jr.: Now, as much as clear, isn't it? If we agree with them if there was coercion consequent perhaps by reason of the warning that the conviction has to be reversed then obviously the statute can be applied to these two fellows that they did testify, right? They didn't rely on the privilege?
Alan B. Handler: That's correct.
William J. Brennan, Jr.: So, we have to wait until they came when you had a police officer who relied on the privilege and then you discharge them under the statute before we have the course of question of constitutionality statute.
Alan B. Handler: I would agree with that. That would be the situation which the constitutionality statute would be involved directly, but the appellants conceived that this statute being on the books was impliedly invoked by the Deputy Attorney General in the course of the interrogation and by that implied invocation of the statute. The result and testimony was coerced.
Byron R. White: The New Jersey Court ruled the context, is it not?
Alan B. Handler: The New Jersey Court --
Byron R. White: Statute wasn't invoked or involved.
Alan B. Handler: That is correct and the New Jersey Court stated in effect that the advice or warning given by the Deputy Attorney General was merely reflective of the intrinsic duty in the laws applicable to police officers. And I want to point out to the Court that in reading the warnings given by these -- to these various appellants, my adversary of course reads the warning given to Mr. Holroyd and which the Deputy Attorney General says that under a statute he may be subject to removal. With respect to each of the other appellants, he merely stated that as a police officer under the laws you may be subject to a proceeding to have you removed from office with respect to Mrs. Naglee, now deceased, of course no warning whatsoever was given. Moreover, more than a year later when the investigation was being conducted by the county prosecutor, the assistant prosecutor didn't mention the possibility of removal at all. Now, the gist of the case in accordance with the New Jersey Supreme Court's decision is that this advice or this warning was reflective of the law applicable to police officers and as such the warning was reasonable, it was fair and it was accurate. And therefore will lead to an analysis as to whether if this warning was reflective of the law applicable to police officers whether that law itself is valid and sound and reasonable. And I don't think there can be any question for this Court and I don't think the appellants so urged that a police officer who was asked to cooperate or testify in the course of an official proceeding relating to his official duties is under a duty to cooperate. Now, none would quarrel that it is a primary function and duty of a police officer to detect and prevent crime and such detection of course involved disclosure and if a police officer fail to report or disclose the commission of a crime involving third persons everyone would have to agree that this would be a horrendous dereliction of duty. And it would be equally so if the crime have been committed by a member of a policeman's family. As a matter of fact recently in the State of New Jersey, we had a situation where a local policeman had to arrest his nephew with respect to a homicide. And so there is this transcending duty on a part of a police officer to make whole disclosure to detect crime, to report crime. Is there then a carved out exception with respect to fulfilling this duty when it comes to a police officer himself. When he himself has been involved or suspected as having been involved in the commission of a crime and of course I think the answer follows that merely because a police officer individually is involved, he is no wise redeemed of his official duty to disclose crime and to cooperate and to testify if this is part of what is necessary to prosecute crime effectively.
Byron R. White: Mr. Handler, then I take it you're distinguishing the police officer from the ordinary citizen who might be interrogated by the police or by the district attorney and hold that now come on you better fellas or we will get you fired and we will follow up you boss then we can pretty well make sure that he won't be working tomorrow and that you (Inaudible) information. Well, you wouldn't compass that as the (Inaudible)?
Alan B. Handler: Not at all.
Byron R. White: So, the policeman is different.
Alan B. Handler: I believe a policeman is different and I --
Byron R. White: If he isn't, why there's coercion?
Alan B. Handler: If he is not, there is coercion. Now, I could well anticipate that other public employees may not be similarly situated. It is conceivable for example that if a state highway maintenance employee is interrogated with respect to gambling or bookmaking or some other type of crime that perhaps the same compulsions or the same duties cannot be super imposed upon him. It turns on whether or not the duty to cooperate, the duty to disclose crime and once possible implication in crime is an inherent part of the function of the particular public employee. Now, of course appellants understandably lost over any possible distinction between a police officer and a private citizen and they retreat to the generalities that the Fifth Amendment applies to everybody and therefore it should apply uncritically to everybody regardless of the circumstances and regardless of the context. I don't think that's so when there are decisions that have held that with respect to grant of particular types of privileges. There may be as a matter of public policy and reasonably regulation curtailments of constitutional privileges such as the Fifth Amendment and the inquiry is not whether or not this is an encroachment on the Fifth Amendment but whether or not the limitation is in itself reasonable whether it's designed to accomplish a reasonable end.
Hugo L. Black: May I ask you, what you're saying is that policemen can be made -- to give evidence against difficulties of policemen and that would be a reasonable regulation of the Fifth Amendment.
Alan B. Handler: I don't go quite that far Mr. Justice Black. I would say that a policeman can be honor a duty to give evidence against himself in a proper proceeding. But he cannot be --
Hugo L. Black: I guess he's force to give evidence against himself?
Alan B. Handler: I don't think he can be forced to give such evidence. I don't think he can be compelled to but I think that the state is not left remedy less against a policeman who fails to perform that duty. I think a state may remove him from office at the very least.
Byron R. White: Mr. Handler, you really do want to argue the statute here through the course of --
Alan B. Handler: No, because I feel this that the statute is on the books. If that statute were construed and applied to literally I concede that we'd have difficulty under the Slochower decision but even in the Lava case cited by my adversary, there was a remand in the Lava case because the New Jersey Supreme Court stated that a teacher could not be dismissed simply for refusing to answer -- to answer questions relating to past communist membership and affiliation that the Slochower decision required the opportunity to be heard and it required a proceeding directed towards the fitness of the teacher to hold the office. And so, the statute in that sense to the extent there was involved in the Lava case has been given this construction and this interpretation by the New Jersey Supreme Court and of course it is the statute as understood and construed by the state court which is persuasive of this Court's view of the state law. And in this case itself, the Court stated without particular reference to the statute that a policeman may be subject to removal for refusal to answer question and an official proceeding relating to his official acts but he can only be so removed in an appropriate proceeding with the opportunity to be heard and if it is disclosed as a result of that proceeding that his failure to testify and cooperate just speaks of a want of fitness to be a policeman. And so, it is of that law which assert is involved in this case.
Hugo L. Black: Well, you don't claim any isn't that the fact of fitness to be a policeman, the policeman claimed to manifest the Fifth Amendment.
Alan B. Handler: I don't say that categorically but I --
Hugo L. Black: How do you avoid it?
Alan B. Handler: I say it may be.
Hugo L. Black: Because that's what happened, that's the way it function.
Alan B. Handler: Well, this Court has held that the mere refusal to testify does not in it of itself give rise to a basis for removal and I don't argue with that articulation. I think what is germane --
Hugo L. Black: Well, what to be added to it besides the fact that he is a policeman and has refused to convict, to give evidence to convict himself, what's to be added to that?
Alan B. Handler: Well, --
Hugo L. Black: Any excuse for it?
Alan B. Handler: They're could conceivably be in excuse for example even in this very proceeding. The plaintiff of the appellant is not wholly lacking in sympathy. They were part of a practice which had grown up of ticket fixing which at this particular point in time in the State of New Jersey had become right. They were not as one reason of record morally reprehensible individuals if they had refused to testify, I would say that their local governing bodies would be well within their discretion in dismissing them but I'm not prepared to say that it would have been abuse of discretion merely to suspend them or to impose some other type of discipline upon them.
Hugo L. Black: They would be within their right as I understand it and dismiss him from service those who had claimed their benefit of the Fifth Amendment.
Alan B. Handler: In this circumstance, I think so. They would --
Hugo L. Black: So you get down to the question as to whether the Fifth Amendment means what it says, does it?
Alan B. Handler: Not necessarily so, not necessarily so because in the situation which you're hypothesizing they have not been required to testify against themselves. They have invoked the Fifth Amendment and refuse to testify and in a circumstance like that --
Hugo L. Black: Well, why should they when they are kind of between the devil and the deep blue sea?
Alan B. Handler: Well, if they're not put between the devil and deep blue sea, it means an effect that society is because it would mean --
Hugo L. Black: But the society is handicapped by the Fifth Amendment.
Alan B. Handler: But I don't think that's a sweet in effect of the Fifth Amendment. I don't think that the Fifth Amendment would require that society continue in public employment, a policeman who was unwilling to cooperate in an investigation relating to his own possible criminal activities just as it seem to make sense.
Earl Warren: Mr. Handler, are we -- do we have to find out in this case whether any one was legally discharged or not or do we have to find out merely that evidence taken from him in what they said to be compulsory manner here is properly introduced in the criminal proceeding against him?
Alan B. Handler: I think that that is basically the only issue.
Earl Warren: That is the only issue?
Alan B. Handler: Involved. The -- in point of fact, this is extra record, I think three of these appellants have been dismissed I think in another municipality they are merely suspended from the force but they're holding other public jobs pending the outcome of the appeal but I don't think that that is involved in this case.
Earl Warren: The only question is, was there coercion in getting these statements from these police officers and therefore were they voluntary statements that could be introduced in the trial against him.
Alan B. Handler: That is the way I see the issue in this case. That is so main issue in the case and --
Hugo L. Black: And precisely how were they obtained? Just precisely how they give them?
Alan B. Handler: I think that the appellants volunteered them.
Hugo L. Black: I'm not talking about conclusion. Tell me what happened.
Alan B. Handler: Factually, this is what happened. Shortly, prior to the order of the New Jersey Supreme Court requiring an investigation an official or an officer of the office of the administrative director as a result of an audit made in these municipalities reported to the Supreme Court the apparent irregularities in the handling of municipal motor vehicle tickets.
William J. Brennan, Jr.: How long we've been doing that?
Alan B. Handler: I think --
William J. Brennan, Jr.: Twenty-five years?
Alan B. Handler: Many, many years this has been a function long exercise by the New Jersey Supreme Court. As a result of this, the New Jersey Supreme Court ordered the Attorney General to conduct an investigation into these alleged irregularities. A deputy Attorney General was deputized or directed by the Attorney General to conduct the investigation. He communicated with each of these appellants, setup dates for hearings and examinations. He had the same time had other investigations conducted in these municipalities. Three of the appellants I want to point out had counsel. One of the other appellants, Chief Garrity indicated he had counsel but didn't want to bring him along because he didn't think it was necessary. The Deputy Attorney General went down to the municipalities. He set up the hearings and the hearings were conducted. And a course of the hearings preliminarily, he advised them very clearly that the purpose of the investigation was into the alleged irregularities in the handling of tickets.
Hugo L. Black: Where they doing it?
Alan B. Handler: He didn't say specifically for their doing it but I think it's reasonably clear that each of them knew he was involved. It was after all the interrogation of the police officers who had issued the tickets, who had acted as violations clerk on a part-time basis, the chief of police in one of the municipalities and the --
Hugo L. Black: I'll get down to the point now where he told them under the law that they testified, it could be used against them to convict them.
Alan B. Handler: Yes.
Hugo L. Black: And would be?
Alan B. Handler: He didn't say it would be but he made a quite clear that their testimony could be used against them or any other person in a subsequent criminal proceeding and this --
Hugo L. Black: And that they would lose their job?
Alan B. Handler: He told them that if they refuse to testify as police officers they may be subject to proceedings --
Hugo L. Black: Testify as police officers, they testified as human being.
Alan B. Handler: Well, that's true but they also were being interrogated in connection with the alleged commission of crime within their jurisdiction and as --
Hugo L. Black: And their alleged conviction of crime?
Alan B. Handler: Yes. And the advice to them was that as police officers they might be subject to removal proceedings if they refuse to testify. Now, it's our position --
Hugo L. Black: What's the difference in that in saying if -- except in the enormity of the -- of what's done, you can be whipped if you don't do this and that's what to be done.
Alan B. Handler: I think there's a great deal of difference.
Hugo L. Black: A great deal of difference is the degree. It was the difference in the compulsion.
Alan B. Handler: Well, --
Hugo L. Black: His job was at stake?
Alan B. Handler: I feel this that the advice given to these appellants was no more no less than what they were subject to them, and what they were obligated to do as policemen and --
Hugo L. Black: To obligate to do it but for the facts of the Fifth Amendment.
Alan B. Handler: Well, of course you assume your conclusion by saying that a priority that Fifth Amendment prevents the discharge of this duty.
Hugo L. Black: No. But suppose for the matter of protection around them so that they can't force them to give evidence against themselves.
Alan B. Handler: But I don't --
Hugo L. Black: By threatening him with something like loss of a job.
Alan B. Handler: If the threat has no grounding in law or in policy then the Fifth Amendment does act as a foreign. But if a man is under a legal duty to cooperate and to testify by virtue of his --
Hugo L. Black: Again, he's beyond the legal duty of the Fifth Amendment says, he can't be compelled to be a witness against himself.
Alan B. Handler: I think he can.
Hugo L. Black: You think he can?
Alan B. Handler: I think he can because it is his decision to make. He can still invoke the Fifth Amendment and state I am not going to testify.
Hugo L. Black: How about their job?
Alan B. Handler: But he may lose his job. Now, appellants argued that this is nothing more nor less than to arrest. They're between the rock and the whirlpool, the devil and the deep blue --
William J. Brennan, Jr.: Well, Mr. Handler I think you answered Justice White before that where this individual is not police officer at the time of that interrogation but private citizens, there will be no question that there was that kind of coercion exercise could violated the privilege?
Alan B. Handler: Yes.
William J. Brennan, Jr.: So, your whole case has to depend on a distinction between a police officer and a private citizen, does it?
Alan B. Handler: Yes. Yes, it does in my mind and I don't go so far as to say that what we argued with respect to a police officer would necessarily apply to every type of public employee. This, I don't know but a police --
Abe Fortas: Did you say in response to Mr. Justice Brennan some time ago that you did not make any point out of a procedural posture of this case so there's to say that it does not come here with -- on the dismissal for refusal to testify that the case comes here and posture where the police officers have been discharged upon a calendar conviction?
Alan B. Handler: I don't think the question of discharges is pertinent Mr. Justice Fortas because in point of fact there's nothing in the record to indicate what the status of these appellants is in each of their municipalities. I think that some are still holding some public --
William J. Brennan, Jr.: Well, anyway the only judgment before us that judgment of criminal conviction.
Alan B. Handler: Judgments of conviction.
Abe Fortas: Well, that's what bothers me because the essential proposition here may be that the mere existence of the statute invalidates the testimony given and makes that testimony of course --
Alan B. Handler: Well, this argument of course has been tendered. I don't subscribe to look because I don't agree with the interpretation of the statute given by appellants. The statute has been interpreted by the State of New Jersey in the Lava case and in this case, and the Court of New Jersey makes it very clear that this statute cannot be invoked except within the perimeter of Slochower. In other words, they cannot be an automatic or mandatory forfeiture. There must be a hearing relating to fitness for office. I also pointed out in my brief that that there is another statute in New Jersey NJSA 40:69 (a) 167 which provides that failure to testify may be grounds for removal on the part of a municipal body in its discretion. Now, that of course is applicable with respect to municipalities that under that particular form of government but it is not the policy of the State of New Jersey that there can be automatic mandatory dismissal upon the bare invocation of the Fifth Amendment on a part of a public employee.
Abe Fortas: So, there is a direct conflict between your position and that stated by Mr. O'Connor in that respect?
Alan B. Handler: Yes, it's --
Abe Fortas: Conflict with respect to New Jersey law?
Alan B. Handler: Yes. Mr. O'Connor with all due respects keeps harking back to the statute as literally written without a sensible appreciation for the manner in which that statute has been construed and the manner in which the New Jersey Supreme Court in this case has articulated the law of discharge with respect to police officers.
Abe Fortas: So, I suppose you would argue that even if the -- an absolute mandatory statute would be considered as -- might be considered as of course that where the invocation of the statute requires a hearing and the application of other standards that the case may be different?
Alan B. Handler: I think it would be different and I think that is that this case because each appellant was surprised clearly that he might be subject to removal not that he would be removed.
Hugo L. Black: What do you mean would be different? I don't quite understand. You mean that by having a hearing you could quote him to give evidence to get (Inaudible)? Would it be the opposite if you didn't have a hearing?
Alan B. Handler: No, I think at a hearing he would be forced to in response to questions to disclose the circumstances and the basis upon which he's refusing to testify. I think he could urge that the questions put to him were not reasonably related to his qualifications for office such as remote membership in the communist party and things like that. I think that's what would be the basis of a disciplinary hearing but --
Byron R. White: Mr. Handler, I gather that if the police should be required to answer question putting in by the district attorney whereas an ordinary citizen wouldn't, why couldn't policeman be called to testify at his criminal trial although the ordinary citizens would not be held?
Alan B. Handler: I think he could be called to testify, I don't think he could be compelled to testify if for example you had a situation where a defendant police officer was called to the stand and he invoked the Fifth Amendment this might raise an interesting point as to whether he would be subject to disciplinary removal for failing to testify in the course of a trial and I think an argument could be made that that result could obtain. I think it could obtain if he was called to testify before a grand jury as oppose to this type of investigation.
Earl Warren: Mr. Handler, may I ask you this? Is it your position that any time a policeman for instance is charged with a crime that he may also be simultaneously charged with or having an investigation in the department of his conduct and they immediately have a hearing on his conduct and he says that he's going to have a criminal -- he's got this criminal case against him and he claims the Fifth Amendment that you could then discharge him for not testifying before this hearing and leaving without a job when he's tried for his crime?
Alan B. Handler: Assuming that there would be independent evidence upon which to proceed with his criminal trial. Yes, I think so and as a matter of fact many of the cases which constitute the literature in this field concerning the discharge of public employees and police officers in particular involved proceedings before a Civil Service Commission or another governmental agency having jurisdiction over employment where the refusal to testify is made in the course of the disciplinary proceeding and it's predicated on the Fifth Amendment. I think the Callahan case is one example of that type of proceeding.
Earl Warren: When you say that wouldn't apply to all kinds of employees, what kind of employees would it not apply to?
Alan B. Handler: Well, I gave as an example of possible non-applicability the highway maintenance employee will feels potholes on a public road. I'm not certain that he has a duty as a part of his official position to detect and prevent crime as does a policeman and this type of proceedings and this type of warning with respect to an employee such as that may not be proper.
Earl Warren: But who would determine what employees would come under and what wouldn't?
Alan B. Handler: Well, I think that would be --
Earl Warren: -- that would be on an ad hoc basis?
Alan B. Handler: Well, it would probably be under statutes and civil service regulations which generally permit dismissal for conduct unbecoming employees, dishonorable conduct and standard such as that which I'm sure most states have.
Hugo L. Black: To what kind of employees has it already been applied?
Alan B. Handler: I'm --
Hugo L. Black: Give us the details of one of them.
Alan B. Handler: Well, the -- I'm not certain that this statute was specifically applied in the teacher cases in New Jersey, Lava and Lowenstein because there was a statute under Title 18 which is the Education Act which permitted dismissal of teachers for conduct unbecoming. And it was their failure to testify which invoked those statutes and even in the Fram (ph) case cited in our brief where there was a loss of a pension. There was the pension statute that provided for forfeiture of pension rights for --
Hugo L. Black: Because they didn't testify against themselves?
Alan B. Handler: No. There was merely the general standards that there could be a lost of pension rights for dishonorable service and the question was raised as to whether or not fade, well, in that case to be accurate. There was a conviction for ticket fixing and --
Hugo L. Black: Convictions of what?
Alan B. Handler: For ticket fixing in the Fram (ph) case cited in our brief and I was held to be dishonorable service and resulted in a loss of a state pension.
Hugo L. Black: And was the person asked about it?
Alan B. Handler: Excuse me.
Hugo L. Black: Was the person asked about it?
Alan B. Handler: I'm not certain in that case whether there was independent evidence. I will rely on our brief with respect to the other issues.
William J. Brennan, Jr.: May I just add one last question if I may? Does this conviction stand or fall on the evidence they got from police?
Alan B. Handler: We did not argue the point of independent substantial evidence.
William J. Brennan, Jr.: But was there other independent issue?
Alan B. Handler: Yes. I want to point out that the printed appendix or the printed record does not constitute the entire record that was before New Jersey's --
William J. Brennan, Jr.: Well, in any event it could be a new trial I gather because he would not have to rely on this testimony that fell, is that it?
Alan B. Handler: I frankly have not evaluated the other testimony that would permit me to reach your conclusion.