Piccirillo v. New York/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs, dissenting.

I do not approve dismissal of this writ as improvidently granted.

Petitioner was indicted for assault committed by the use of tire irons. He pleaded guilty and was sentenced to imprisonment. Shortly thereafter a grand jury was impaneled to investigate the assault on the victim and the conspiracies arising in connection with it. Petitioner, while still serving the sentence on the assault conviction, was called to testify before the grand jury.

After refusing to testify, petitioner was granted immunity. He then testified to the assault which he had perpetrated by the use of tire irons. Four days later a police officer testified before the grand jury that after a chase, he had arrested petitioner and another, and thereupon had taken the tire irons from them. The officer also testified that following petitioner's arrest petitioner had offered the officer a bribe to change his testimony. Petitioner was subsequently indicted by the grand jury for bribery, and, following an unsuccessful motion to dismiss based on the grant of immunity, he pleaded guilty to attempted bribery. The New York Court of Appeals held four-to-three that the New York immunity statute only prohibited use of testimony and the fruits of the testimony in a subsequent criminal proceeding and that the police officer's testimony was in no way derived from anything petitioner said. 24 N.Y.2d 598, 301 N.Y.S.2d 544, 249 N.E.2d 412.

Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed.2d 1110, held that once immunity was granted, it protected the witness against prosecution not only for a crime that relates to the precise testimony given but also for the fruits of such testimony. Id., at 564-565, 12 S.Ct., at 198-199. But the Court went further: 'In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates.' Id., at 586, 12 S.Ct., at 206. In Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, which involved another federal prosecution, the immunity statute provided that the witness would be protected 'on account of any transaction * *  * concerning which he may testify.' Id., at 594, 16 S.Ct., at 645. The Court held that the immunity offered was coterminous with the privilege and that the witness could therefore be compelled to testify. Thus, 'transactional immunity' became part of the fabric of our federal constitutional law. See Ullmann v. United States, 350 U.S. 422, 438, 76 S.Ct. 497, 506, 100 L.Ed. 511.

Now that the Self-Incrimination Clause of the Fifth Amendment is applicable to the States, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the same immunity against state prosecutions must be granted by the States as the Federal Government must grant against federal prosecutions. Id., at 10-11, 84 S.Ct., at 1494 1495.

Subsequent to petitioner's case the New York Court of Appeals unanimously concluded that their statute provides transactional immunity. Gold v. Menna, 25 N.Y.2d 475, 307 N.Y.S.2d 33, 255 N.E.2d 235. Nevertheless, that court also concluded that petitioner would not have benefited from the change of law because he gave no testimony which related to the offense for which he was prosecuted. Id., at 481 n. 1, 307 N.Y.S.2d, at 38, 255 N.E.2d at 238. That approach to the problem is not in keeping with the generous interpretations which the Fifth Amendment has heretofore received by this Court.

Petitioner had just testified to the grand jury concerning facts which provided the underlying basis for the bribery charge. The grand jury knew petitioner had assaulted a man with tire irons because petitioner himself told them so. The tire irons were the 'evidence' which according to the police officer petitioner had tried to bribe him 'to get rid of.' They were the same tire irons used in the assault for which he was convicted and sentenced, not tire irons used to commit another assault. Moreover, the bribery charge grew out of conversations which petitioner had with the police officer the day of his arraignment on the assault charge. It seems obvious that, if the transactional test is to be honored, this is one of the clearest instances in which to do so.

Accordingly, I would reverse the decision below.