32 A.D.2d 138 (N.Y. App. Div. 1969)

A prospective defendant or target of a grand jury investigation can be compelled to appear before the grand jury, and the issuance of a subpoena for this purpose does not, by itself, violate the target’s Fifth Amendment rights.

Summary

Faculty members at SUNY Stony Brook, subjects of a grand jury investigation into campus drug use, sought to quash subpoenas compelling their appearance. They argued that as targets of the investigation, they couldn’t be forced to testify, citing Fifth Amendment concerns and academic freedom. The court held that being subpoenaed to appear before a grand jury does not violate a target’s Fifth Amendment rights. The court also found that academic freedom is not violated by requiring teachers to appear before a grand jury to discuss matters relevant to an investigation of misconduct. The order denying the motion to quash the subpoenas was affirmed.

Facts

Faculty members at the State University of New York at Stony Brook were subpoenaed to appear before a Suffolk County Grand Jury investigating potential drug abuse on campus. The District Attorney acknowledged the faculty members were targets of the investigation. The faculty members were expected to be asked questions about their own drug use with students, advocacy of illegal drug use to students, and discussions with administrators about such advocacy or use.

Procedural History

The faculty members initiated an action to quash the subpoenas. The application to quash was denied by the trial court. The Appellate Division affirmed the denial. The case then was appealed to the New York Court of Appeals based on constitutional questions.

Issue(s)

1. Whether prospective defendants or targets of a Grand Jury investigation may be compelled to attend a Grand Jury hearing without violating their Fifth Amendment rights?
2. Whether compelling teachers to respond to a subpoena to appear before a grand jury violates their First Amendment right to academic freedom?

Holding

1. No, because the Fifth Amendment does not prevent a prospective defendant from being compelled to at least attend a grand jury investigation.
2. No, because no constitutional right is violated by a subpoena requesting a teacher to appear before a Grand Jury inquiry and discuss matters relevant to an investigation of misconduct, which he may freely discuss in a classroom.

Court’s Reasoning

The court distinguished this case from prior New York cases (People v. Steuding and People v. Laino), which held that a prospective defendant could not be both called and examined before a grand jury without immunity from self-incrimination. Those cases were deemed inapplicable as the present case only involved the issuance of a subpoena, not compelled testimony.

The court relied on Supreme Court decisions in Gardner v. Broderick and Sanitation Men v. Sanitation Comr., stating that they suggest a public employee who is a target of an investigation may be subpoenaed by a Grand Jury without automatically violating the employee’s Fifth Amendment rights. The court emphasized that those cases affirm the right of public employees to invoke their Fifth Amendment privilege against self-incrimination, but do not preclude being subpoenaed.

Addressing the First Amendment argument, the court distinguished the case from Keyishian v. Board of Regents and Dombrowski v. Pfister, where state laws were found to be unconstitutional because they infringed upon First Amendment rights. The court noted that there were no statutes attempting to proscribe conduct in this case. The court reasoned that the teachers’ argument that they would be intimidated in their lectures by the potential threat of a grand jury appearance does not amount to a violation of constitutional rights. As the court stated, “no constitutional right is violated by a subpoena which requests a teacher to appear before a Grand Jury inquiry and discuss matters — relevant to an investigation of misconduct— which he may freely discuss in a classroom.”

The court explicitly stated that mere discussion or advocacy of conduct that might itself be criminal is different from the actual solicitation of crime with the specific intent of having it committed. Only the latter may be constitutionally prohibited.