Mills v. Louisiana/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

Petitioners in these cases were summoned before a state grand jury in New Orleans and interrogated concerning bribery of public officials and income tax evasion. They were at the time being investigated by the Federal Internal Revenue Service. Accordingly, they objected to the questions, invoking the Fifth Amendment and stating that the answers to the questions would tend to incriminate them. Their objections were overruled and they were held in contempt for refusal to answer. The Supreme Court of Louisiana refused writs of certiorari, mandamus, and prohibition, finding 'no error of law in the ruling complained of.' The cases are here on certiorari. 358 U.S. 810, 79 S.Ct. 22, 3 L.Ed.2d 55.

It has been the prevalin g view since Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, that the guaranty of the Fifth Amendment that no person 'shall be compelled in any criminal case to be a witness against himself' is not made applicable to the States through the Fourteenth Amendment. Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 1674, 91 L.Ed. 1903. Under the Twining rule, the Louisiana courts, therefore, need not bow to the Fifth Amendment as a requirement read into state law by the Bill of Rights.

That is not, however, the end of our problem. For the question remains whether a state court can override a claim of federal right seasonably raised in the state proceeding, when the failure to recognize the federal right will result in its destruction or nullification.

The classical case involves a federal right in the conduct of a business, as in the case of the contractor in Leslie Miller, Inc. v. State of Arkansas, 352 U.S. 187, 77 S.Ct. 257, 1 L.Ed.2d 231, who, having been the successful bidder for federal construction work, could not be subjected to conflicting state licensing requirements. Related cases are in the class of Service Storage & Transfer Co. v. Commonwealth of Virginia, 359 U.S. 171, 79 S.Ct. 714, 3 L.Ed.2d 717, and Castle v. Hayes Freight Lines, 348 U.S. 61, 75 S.Ct. 191, 99 L.Ed. 68, which hold that an interstate motor carrier certificate issued by the Interstate Commerce Commission could not be overridden in state proceedings. Litigants asserting federal rights as the basis of a claim (Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967) or as a defense to a claim under state law (Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129) may do so in state courts which must recognize and protect the federal rights. Chief Justice White stated it as the 'duty resting upon' state and federal courts 'to protect and enforce rights lawfully created, without reference to the particular government from whose exercise of lawful power the right arose.' Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 223, 36 S.Ct. 595, 599, 60 L.Ed. 961. Litigants, resting on a federal right, need not resort to federal courts to protect those rights where those rights are put in jeopardy in state proceedings.

There is no more apt illustration of that principle than the present case. The Fifth Amendment to the Constitution reserves a twofold federal guarantee for every citizen. It protects him from being forced to give testimony in any federal proceeding, criminal or civil (Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110; McCarthy v. Arndstein, 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023; 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158), judicial, investigative or administrative (Quinn v. United States, 349 U.S. 155, 161, 75 S.Ct. 668, 672, 99 L.Ed. 964; Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264), which might tend to incriminate him. And it also assures that no incriminating information adduced from a defendant involuntarily by anyone, anywhere, may be admitted into evidence against him in any federal prosecution. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568; Ziang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131. It was to this second principle that the ruling of this Court in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, was unfaithful. As long as that decision is adhered to, the evidence obtained in a state proceeding such as the one in this case can be used in a federal prosecution. It is, therefore, too late to protect the federal right if one waits for action by the federal court. The federal right is lost irretrievably, if it is not saved by the state court. As stated by the Supreme Court of Michigan in People v. Den Uyl, 318 Mich. 645, 651, 29 N.W.2d 284, 287, 2 A.L.R.2d 625:

'It seems like a travesty on verity to say that one is not     subjected to self-incrimination when compelled to give      testimony in a Statejud icial proceeding which testimony may      forthwith be used against him in a Federal criminal      prosecution.'

If the dissent in Feldman v. United States, supra, had prevailed and testimony compelled from a witness in a state proceeding had been barred from use against him when he became a defendant in a federal proceeding, protection of the federal right against self-incrimination could be left to the federal courts. But Feldman, until it is overruled, controls the regimes under which state investigations are made and federal prosecutions conducted. As long as it is on the books the only place a witness, who is being examined in state proceedings about matters that may incriminate him under federal laws, can protect his rights against self-incrimination under the Fifth Amendment is in the state courts.

Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393, is contrary to the disposition I would make of the present cases. But it is not a principled decision that addressed itself to the proposition that unless the federal right is protected in the state proceeding it is lost forever. The opinion in that case was concerned with maintaining the vitality of state investigations. Not once did it mention Feldman v. United States, supra, nor address itself to the dilemma created by that decision. Nowhere does it explain how in light of Feldman v. United States the federal right can be protected and the vitality of state investigations also maintained. I have said enough to indicate that both cannot be done by affirming these judgments. As long as Feldman v. United States stands on the books, the state courts should be required to recognize the federal right against self-incrimination-lest it be lost forever.