California v. Byers/Dissent Brennan

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.

Although I have joined my Brother BLACK's opinion in this case, the importance of the issues involved and the wide range covered by the two opinions supporting the Court's judgment in this case make further comment desirable. Put briefly, one of the primary flaws of the plurality opinion is that it bears so little relationship to the case before us. Notwithstanding the fact that respondent was charged both with a violation of the California Vehicle Code which resulted in an accident, and with failing to report the accident and its surrounding circumstances as required by the statute under review, the plurality concludes, contrary to all three California courts below, that respondent was faced with no substantial hazard of self-incrimination under California law. My Brother HARLAN, by contrast, recognizes the inadequacy of any such conclusion. In his view, our task is to make the Bill of Rights 'relevant to contemporary conditions' by simply not applying its provisions when we think the Constitution errs. Ante, at 454. In the context of the present case, this appears to mean that current technological progress enabling the Government more easily to use an individual's compelled statements against him in a criminal prosecution should be matched by frank judicial contraction of the privilege against self-incrimination lest the Government be hindered in using modern technology further to reduce individual privacy. Needless to say, neither of these approaches is consistent with the Constitution.

* This case arises from an attempt by the State of California to punish an assertion of the Fifth Amendment's privilege against self-incrimination. Respondent Byers was charged with a statutory duty to report his involvement as a driver in an auto accident involving property damage. This he refused to do, and California seeks to impose criminal punishment for his refusal. Unlike the plurality, I believe that analysis of the question whether California may do so is inevitably tied to the circumstances of this case. I therefore turn to the record.

Respondent was initially charged in Justice Court with two violations of California law. The criminal complaint alleged, first, that he violated California Vehicle Code § 21750 (Supp.1971) by improper passing; and second, that he was involved in an accident causing property damage and failed to report his name, address, and the circumstances of the accident to the other driver involved and the California Highway Patrol. California Vehicle Code § 20002, as amended by Cal.Laws 1965, c. 872. After a demurrer to the complaint was rejected, respondent sought a writ of prohibition to restrain prosecution of the second charge of the complaint.

The California Superior Court dealt with the statutory reporting requirement only as applied to respondent. It found as a fact that the alleged improper passing with which respondent was charged caused the accident that respondent was charged with failing to report. App. 49. The court found it 'hard to imagine a more damaging link in the chain in a prosecution under Vehicle Code Section 21750 than that which establishes that the defendant was driving the vehicle involved.' App. 42. Since on these facts it was 'obvious,' App. 44, that respondent faced a substantial hazard of self-incrimination if he reported that he was the driver of one of the automobiles involved in the accident, the Superior Court issued the writ to restrain prosecution for failure to make the report.

The California Court of Appeal also dealt with the statute only as applied to respondent. Like the Superior Court, it found it 'difficult to imagine a more damaging link in the chain of prosecution' than the requirement of § 20002 that respondent inform the police that he was the driver of one of the vehicles involved in the accident. As the Court of Appeal put the matter, 'To compel (respondent) to comply with (§ 20002) and thus to admit a fact essential to his conviction of a violation of section 21750 is to compel him to give a testimonial declaration that falls directly within the scope of the constitutional privilege.' Byers v. Justice Court, etc., 71 Cal.Rptr. 609, 612 (Ct.App.1968). It concluded, however, that respondent could be criminally punished for his failure to report because the Fifth Amendment prohibited the use of 'admissions and statements made in compliance with' § 20002 'in a prosecution for a criminal offense arising out of the same course of conduct.' Ibid. It reversed the Superior Court's grant of the writ of prohibition.

Finally, the California Supreme Court likewise dealt with the statute in the context of its application to respondent. It first identified the 'crucial inquiry in determining the applicability of the privilege' as

'whether the individual seeking to avoid disclosure faces     'substantial hazards of self-incrimination' because in his      particular case there is a substantial likelihood that information disclosed by him in compliance      with the statute could by itself or in conjunction with other      evidence be used to secure his conviction of a criminal      offense.' 71 Cal.2d 1039, 1043, 80 Cal.Rptr. 553, 556, 458     P.2d 465, 468 (1969) (emphasis added).

Second, it construed the California statute in question to require a person to whom it applies to report not merely his name and address, but also that he was the driver of an automobile involved in a particular accident. 71 Cal.2d, at 1045, 80 Cal.Rptr., at 558, 458 P.2d, at 470. It held the privilege against self-incrimination applicable to the 'driver of a motor vehicle involved in an accident (who) is confronted with (the) statutory requirement * *  * (and who) reasonably believes that compliance with the statute will result in self-incrimination.' Id., at 1047, 80 Cal.Rptr., at 559, 458 P.2d, at 471. It agreed with the two courts below that respondent, at the time of the accident, 'had reasonable ground to apprehend that if he stopped to identify himself as required * *  * he would confront a substantial hazard of self-incrimination.' Id., at 1057, 80 Cal.Rptr., at 565, 458 P.2d, at 477. It agreed with the Court of Appeal, however, that the statute could and should be limited by restricting the use of information acquired pursuant to the statutory compulsion in circumstances where the particular individual reporting could demonstrate a substantial risk of self-incrimination. Id., at 1050-1056, 80 Cal.Rptr., at 560-565, 458 P.2d, at 472-477. Contrary to the Court of Appeal, however, the California Supreme Court felt that it would be unfair to punish respondent when he could have had no knowledge that use restrictions would be applied by the courts. Accordingly, it affirmed the Superior Court. Id., at 1057-1058, 80 Cal.Rptr., at 565-566, 458 P.2d, at 477-478. The two dissenting justices took issue with the majority only over the question whether respondent's punishment would be unfair. Id., at 1059-1060, 80 Cal.Rptr., at 566-567, 458 P.2d, at 478-479.

The plurality opinion, unfortunately, bears little resemblance either to the facts of the case before us or to the law upon which it relies. Contrary to the plurality opinion, I do not believe that we are called upon to determine the broad and abstract question 'whether the constitutional privilege against compulsory self-incrimination is infringed by California's so-called 'hit and run' statute which requires the driver of a motor vehicle involved in an accident to stop at the scene and give his name and address.' Ante, at 425. I believe we are called upon to decide the question presented by this case, which is whether California may punish respondent, over his claim of the privilege against self-incrimination, for failing to comply with the statutory requirement that he report his name and address, and the fact that he was the driver of an automobile involved in this particular accident. Despite the plurality's assurance that its 'judicial scrutiny is * *  * a close one,' ante, at 427, I believe that in the course of explaining its own views regarding 'disclosures with respect to automobile accidents' in general, ante, at 431, the plurality has lost sight of the record before us. See ante, at 427, 430-431. Instead of dealing with the 'underlying constitutional issues in clean-cut and concrete form,' Rescue Army v. Municipal Court, etc., 331 U.S. 549, 584, 67 S.Ct. 1409, 1427, 91 L.Ed. 1666 (1947), the plurality seeks a broad general formula to resolve the tensions 'between the State's demand for disclosures and * *  * the right against self-incrimination.' Ante, at 427. But only rivers of confusion can flow from a lake of generalities. Cf. the opinion of my Brother BLACK, ante, at 460-461.

Much of the plurality's confusion appears to stem from its misunderstanding of the language, embodied in several of this Court's opinions, regarding questions 'directed at a highly selective group inherently suspect of criminal activities.' Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165 (1965); see Marchetti v. United States, 390 U.S. 39, 47, 57, 88 S.Ct. 697, 702, 707, 19 L.Ed.2d 889 (1968). The plurality seems to believe that membership in such a suspect group is somehow an indispensable foundation for any Ffith Amendment claim. See ante, at 429-431. Of course, this is not so, unless the plurality is now prepared to assume that McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924); Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), amd Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), were based, respectively, upon the unarticulated premises that bankrupts, businessmen, policemen, and lawyers are all 'group(s) inherently suspect of criminal activities.' Instead, in the words of the California Supreme Court, 'in each case the crime-directed character of the registration requirement was * *  * important only insofar as it supported the claims of the specific petitioners that they faced 'substantial hazards of self-incrimination' justifying invocation of the privilege.' 71 Cal.2d, at 1043, 80 Cal.Rptr., at 556, 458 P.2d, at 468. That this is so is evident from our emphasis in Marchetti that 'we do not hold that these wagering tax provisions are as such constitutionally impermissible * *  *. If, in different circumstances, a taxpayer is not contronted by substantial hazards of self-incrimination * *  * nothing we decide today would shield him from the various penalties prescribed by the wagering tax statutes.' 390 U.S., at 61, 88 S.Ct., at 709. The point is that in both Albertson and Marchetti, petitioners arrived in this Court accompanied by a record showing only that they had failed to register, respectively, as Communists and as gambler, and that, in fact, they were such. Since neither of these facts was necessarily criminal, we had to determine whether the petitioners faced 'real and appreciable' or merely 'imaginary and unsubstantial' hazards when they refused to register. That the petitioners belonged in each case to an inherently suspect group was relevant to that question, and that alone. By contrast, in the present case we are dealing with a record which demonstrates, as found by all three courts below, that respondent was charged by California both with illegal passing which resulted in an accident, and with failing to report himself as one of the drivers involved in that accident. It is hard to imagine a record demonstrating a more substantial hazard of self-incrimination than this. Yet the plurality somehow conclude that respondent did not face the 'substantial risk of self-incrimination involved in Marchetti,' Ante, at 431.

The plurality opinion also places great reliance upon United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). I had understood that case to stand for the proposition that one who desired to raise a Fifth Amendment claim to protect his refusal to provide information required by the Government on a tax return should make specific objection to the particular question on the return. Sullivan's sole objection was to disclosing the amount of his income, on the ground that it had been made in crime; he did not claim to be entitled to refuse to disclose his name and address. The Court suggested, although it did not decide, that it would in a proper case reject the claim as to amount of income. It may be that Sullivan also stands for the proposition that an individual may not refuse, on Fifth Amendment grounds, to file a return disclosing his name and address, and by implication disclosing that he has earned some income during the previous year. But that question was not raised in Sullivan, and the Court explicitly noted that it was not called upon to decide what information could be withheld; certainly I would expect this Court to hesitate before affirming the conviction of a fugitive from justice for filing a tax return which omitted his address. However that may be, I am frankly unable to understand just what the plurality thinks that Sullivan stands for. Rather than pursue the matter further, I simply note below those portions of the Sullivan opinion quoted, paraphrased, or omitted in the plurality opinion. Portions there quoted are in roman type; portions there paraphrased are enclosed in brackets; portions there omitted are in italics.

'As the defendant's income was taxed, the statute of course     required a return. * *  * In the decision that this was      contrary to the Constitution we are of opinion that the      protection of the Fifth Amendment was pressed too far. If the     form of return provided called for answers that the defendant      was privileged from making he could have raised the objection      in the return, but could not on that account refuse to make      any return at all. We are not called on to decide what, if     anything, he might have withheld. * *  * (It would be) an      extreme if not an extravagant application of the Fifth      Amendment (to say that it authorized a man to refuse to state      the amount of his income because it had been made in crime.)      But if the defendant desired to test that or any other point      he should have tested it in the return so that it could be      passed upon.' United States v. Sullivan, 274 U.S., at 263      264, 47 S.Ct., at 607-608.

Cf. the plurality opinion, ante, at 428-429, 433-434.

I find even less persuasive the plurality's alternative suggestion, see ante, at 431-434, that the California statute involved here does not require individuals to 'provide the State with 'evidence of a testimonial or communicative nature' within the meaning of the Constitution.' Ante, at 432. But, the plurality opinion states that '(c)ompliance with § 20002(a)(2) requires two things: first, a driver involved in an accident is required to stop at the scene; second, he is required to give his name and address;' it later suggests that, conceivably, 'it (could) be * *  * inferred' that such a driver 'was indeed the operator of an 'accident involved' vehicle.' Ante, at 431, 433. But, the plurality opinion continues, United States v. Wade, 388 U.S. 218, 221-223, 87 S.Ct. 1926, 1929 1930, 18 L.Ed.2d 1149 (1967), rejects the notion that 'such inferences are communicative or testimonial.' Ante, at 433. Putting aside the pluradity's misreading of Wade, adequately dealt with by my Brother HARLAN, ante, at 435-436, the initial problem with the plurality opinion is that it adopts a construction of the California statute that was explicitly rejected by the California Supreme Court. That court specifically stated that the statute involved here 'requires drivers involved in accidents to identify themselves as involved drivers.' 71 Cal.2d, at 1045, 80 Cal.Rptr., at 558, 458 P.2d, at 470 (emphasis added in part). We have no license to overrule the California Supreme Court on a question of the construction of a California statute. Even if we did, however, I would still not be persuaded by the plurality's reasoning that since '(d)isclosure of name and address is an essentially neutral act,' ante, at 432, any inferences which may be drawn from that disclosure are not 'communicative or testimonial' in nature. Ante, at 432, 433. Apparently the plurality believes that a statute requiring all robbers to stop and leave their names and addresses with their victims would not involve the compulsion of 'communicative or testimonial' evidence.

Similarly, I do not believe that the force of my Brother BLACK's reasoning may be avoided by my Brother HARLAN's approach. He quite candidly admits that our prior cases compel the conclusion that respondent was entitled to rely on the privilege against self-incrimination as a defense to prosecution for failure to stop and report his involvement in an accident. Ante, at 438-439. He would simply limit those cases because he believes that technological progress has made the privilege against self-incrimination a 'threat' to 'realistic' government that we can no longer afford. To the extent that this argument calls for refutation, it is adequately disposed of in Mr. Justice Brandeis' dissenting opinion in Olmstead v. United States, 277 U.S. 438, 472-477, 479, 48 S.Ct. 564, 570-573, 72 L.Ed. 944 (1928). Our society is not endangered by the Fifth Amendment. 'The dangers of which we must really beware are * *  * that we shall fall prey to the idea that in order to preserve our free society some of the liberties of the individual must be curtailed, at least temporarily. How wrong that kind of a program would be is surely evident from the mere statement of the proposition.' J. Harlan, Live and Let Live, in The Evolution of a Judicial Philosophy, 285, 288 (D. Shapiro ed., 1969).

In any event my Brother HARLAN's opinion is consistent neither with the present record nor its own premises. As to the first, my Brother HARLAN appears to believe that the imposition of use restrictions on the present statute would threaten the capacity of California 'to respond to societal needs with a realistic mixture of criminal sanctions and other regulatory devices.' Ante, at 452. If so, this threat passed unperceived by the California Supreme Court: that court stated that its imposition of a use restriction 'will neither frustrate any apparent significant legislative purpose nor unduly hamper criminal prosecutions of drivers involved in accidents resulting in damage to the property of others.' 71 Cal.2d, at 1054, 80 Cal.Rptr., at 563, 458 P.2d at 475. It seems to have passed unnoticed by the California Legislature as well. The present statute applies to drivers involved in accidents causing property damage. California Vehicle Code § 20012 (Supp.1971) requires similar, albeit more detailed, reports from drivers involved in accidents resulting in either personal injury or death. Yet the California Legislature itself imposed use restrictions upon the use of such reports. Ibid. It is one thing to respect a State's assertion that imposition of a particular requirement will unduly hamper a legitimate state interest. It is quite another to flout the conclusion of the State's Supreme Court-and, so far as appears, of the state legislature as well-that imposition of a particular requirement is not at all inconsistent with the asserted state interests.

Moreover, I think my Brother HARLAN's opinion falls on its own premises. For he recognizes, and apparently would follow, our cases holding that the privilege against self-incrimination may be claimed by a witness in a noncriminal proceeding who is asked to give testimony that might indicate his commission of crime. E.g., Counselman v. Hitchcock, 142 U.S., at 562, 12 S.Ct., at 198; McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924); Hutcheson v. United States, 369 U.S. 599, 82 S.Ct. 1005, 8 L.Ed.2d 137 (1962) (Harlan, J.). See ante, at 450-451. He appears to belive that these cases are different from the one before us, because they involve information 'sought by a private party wholly for purposes of resolving a private dispute,' ante, at 450, where no 'special governmental interests in addition to the deterrence of antisocial behavior by use of criminal sanctions are affected.' Ante, at 451. Yet this is precisely the case before us. For the only noncriminal interest that has ever been asserted to justify the California reporting statute at issue here is the State's interest in providing information 'sought by a private party wholly for purposes of resolving a private dispute.' Of course, state policy is exercised, in part, through the resolution of otherwise private disputes through the judicial process. But this is true of every civil case, whether it involves tort liability for negligent driving, the ability of private individuals to inherit from one another, Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), or the right of private parties to dissolve a previous marriage, Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (Harlan, J.). To distinguish the ordinary 'civil lawsuit context,' ante, at 451, from the civil lawsuit context in which the present statute is involved is simply to indulge in the sort of 'artificial, if not disingenuous judgments' against which my Brother HARLAN's opinion otherwise warns. Ante, at 442.

Finally, even if everything else in my Brother HARLAN's opinion be accepted, I cannot understand his concurrence in the judgment. For the California Supreme Court agreed with his conclusion that the privilege against self-incrimination does not provide a defense to an individual who fails to comply with the statutory reporting requirement. 71 Cal.2d, at 1057, 80 Cal.Rptr., at 565, 458 P.2d, at 477. But it nevertheless concluded that respondent should not be punished because it would be 'unfair' to do so. 71 Cal.2d, at 1058, 80 Cal.Rptr., at 566, 458 P.2d, at 478. Although my Brother HARLAN concludes that the Fifth Amendment does not excuse compliance with the California reporting requirements for reasons quite different from those relied upon by the California Supreme Court, the point is that both have reached the same conclusion. Of course, we have already held that due process is denied an individual if he is led to believe that the privilege against self-incrimination applies when he refuses to answer questions, and subsequently prosecuted on the grounds that it does not. Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). One would assume that in such circumstances my Brother HARLAN would, although for very different reasons, agree that the judgment of the California Supreme Court should be affirmed.

Although, strictly speaking, the only question before us is whether respondent may be punished for failing to comply with the statutory requirement at issue, I am constrained to add that I cannot agree with the California Supreme Court's conclusion that the requirement may be enforced if the State is merely precluded from using the compelled evidence and its fruits in a criminal prosecution. When, as in the present case, the statute requires an individual to admit that he has engaged in conduct likely to be the subject of criminal punishment under the California traffic laws, the requirement in my view may be enforced only if those reporting their involvement in an accident pursuant to the statutory command are immune from prosecution under state law for traffic offenses arising out of the conduct involved in the accident. See Piccirillo v. New York, 400 U.S. 548, 550-551, 91 S.Ct. 520, 521-522, 27 L.Ed.2d 596 (1971) (Douglas, J., dissenting); id., at 561-573, 91 S.Ct. 527 533 (Brennan, J., dissenting); Mackey v. United States, 401 U.S. 667, 702, 91 S.Ct. 1160, 1165, 28 L.Ed.2d 404 (1971) (Brennan, J., concurring in judgment).