New York Law Review

Tag: self-incrimination

  • People v. Menna, 25 N.Y.2d 475 (1969): Scope of Immunity in Grand Jury Investigations

    People v. Menna, 25 N.Y.2d 475 (1969)

    When a grand jury investigates a conspiracy to commit a crime for which immunity can be granted, a witness who is granted immunity receives transactional immunity for any crimes revealed by their testimony, even if those crimes are not specifically enumerated in the statute authorizing immunity.

    Summary

    The appellants refused to answer questions before a grand jury investigating a conspiracy to commit murder, claiming their answers might be self-incriminatory. The District Attorney granted them immunity, but they still refused to answer and were held in contempt. The New York Court of Appeals affirmed the contempt orders, holding that the grand jury’s investigation into conspiracy to commit murder allowed it to grant immunity, and that the immunity granted was transactional, protecting the witnesses from prosecution for any crimes revealed by their testimony. The Court reasoned that limiting immunity based on potential revelation of non-enumerated crimes would undermine the legislative intent behind immunity statutes.

    Facts

    A Kings County Grand Jury was impaneled to investigate a conspiracy to commit murder related to leadership of an organized crime syndicate. Appellants Menna et al., subpoenaed to testify, refused to answer questions, asserting their Fifth Amendment right against self-incrimination. The District Attorney, believing they had useful evidence about the conspiracy and the identities of co-conspirators, granted them immunity under sections 619-c and 619-d of the Code of Criminal Procedure. They persisted in their refusal.

    Procedural History

    The District Attorney obtained a court order directing the appellants to appear before the Grand Jury and answer questions, or face contempt charges. When the appellants refused, the Supreme Court, Kings County, held them in contempt of court in violation of section 750 of the Judiciary Law and sentenced them. The appeals were consolidated as they involved identical questions of law. The Appellate Division affirmed, and the case was appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether a grand jury has the power to grant immunity in an investigation centering on a conspiracy to commit murder, even though the completed crime of murder is not an offense for which the Grand Jury has statutory authority to grant immunity.
    2. Whether the immunity granted by the Grand Jury was coextensive with the appellants’ privilege against self-incrimination.
    3. Whether the appellants were entitled to a hearing on the relevancy of the questions asked.

    Holding

    1. Yes, because section 619-d(2) specifically allows for immunity in cases of conspiracy to commit murder, and the statutory purpose of granting immunity to gain evidence mandates allowing the Grand Jury to grant immunity in this situation.
    2. Yes, because the applicable immunity statute provides that a person upon whom immunity is conferred “shall not be prosecuted or subjected to any penalty… for or on account of any transaction, matter or thing concerning which… he gave answer or produced evidence.”
    3. No, because only an intelligent estimate of relevancy need be made, and the questions asked of the appellants (knowing the victims or Joe Bonanno) met this standard given the scope of the Grand Jury investigation.

    Court’s Reasoning

    The Court reasoned that the Grand Jury’s investigation focused on a conspiracy to commit murder, an offense for which immunity could be granted. The fact that the investigation also touched on completed murders, for which immunity could not be directly granted, did not invalidate the grant of immunity. The Court stated: “To be sure, there is always the possibility that in any Grand Jury investigation where immunity is granted, crimes not specifically enumerated in the statute may be revealed. However, to allow this fact to repeatedly void the grant of immunity would be illogical and contrary to the intent of the Legislature.”

    The Court also clarified that the immunity granted was transactional, meaning it protected the appellants from prosecution for any crime revealed by their testimony. Quoting Matter of Grand Jury [Cioffi], the Court stated that the appellants would have gotten “complete immunity as to any and all crimes to which their testimony related.” The Court expressly reaffirmed this interpretation, overruling any inconsistent statements in People v. La Bello.

    Regarding the relevancy of the questions, the Court applied the “intelligent estimate of relevancy” standard from Matter of Koota v. Colombo, finding that the questions about knowing the murder victims or Joe Bonanno were relevant to the Grand Jury’s investigation into the series of killings and the conspiracy to succeed Bonanno.

    The Court dismissed the argument that the appellants were targets of the investigation, citing prior precedent that a person has no right to remain silent after a grant of immunity, even if they are the target of the investigation. The Court also rejected the argument that the appellants were illegally before the Grand Jury, finding that they were afforded ample notice and were fully apprised of the nature of the Grand Jury inquiry.

  • Steinbrecher v. Wapnick, 24 N.Y.2d 354 (1969): Waiver of Fifth Amendment Privilege in Civil Cases

    Steinbrecher v. Wapnick, 24 N.Y.2d 354 (1969)

    A party in a civil suit does not waive their Fifth Amendment privilege against self-incrimination by making prior statements unless those statements constitute an actual admission of guilt or incriminating facts, and the assertion of the privilege does not unfairly prejudice the opposing party.

    Summary

    Steinbrecher sued Wapnick, alleging Wapnick fraudulently sold him stolen cars. During pre-trial examination, Wapnick invoked his Fifth Amendment right, refusing to answer questions about his involvement. Steinbrecher moved to strike Wapnick’s answer and sought a default judgment, arguing Wapnick had waived his privilege through prior affidavits denying the allegations to vacate an order of arrest. The trial court granted Steinbrecher’s motion. The New York Court of Appeals reversed, holding that Wapnick’s prior general denials did not constitute a waiver of his Fifth Amendment rights, especially since the assertion of the privilege did not prejudice Steinbrecher.

    Facts

    Steinbrecher, a used car dealer, sued Wapnick, claiming Wapnick and others fraudulently sold him 17 stolen cars.

    Steinbrecher obtained an order for Wapnick’s arrest at the start of the suit.

    Wapnick served a verified answer denying the allegations.

    Wapnick moved to vacate the arrest order and submitted affidavits denying knowledge of the fraudulent transactions.

    During a pre-trial examination, Wapnick refused to answer 42 questions, asserting his Fifth Amendment privilege against self-incrimination due to pending indictments against him.

    Procedural History

    The trial court granted Steinbrecher’s motion to strike Wapnick’s answer and entered a default judgment against Wapnick.

    The Appellate Division affirmed.

    Wapnick appealed to the New York Court of Appeals.

    Issue(s)

    Whether Wapnick waived his Fifth Amendment privilege against self-incrimination by previously submitting affidavits containing general denials of wrongdoing when moving to vacate an order of arrest in the same civil case.

    Holding

    No, because Wapnick’s prior general denials, made to vacate an order of arrest, did not constitute a knowing and voluntary waiver of his Fifth Amendment privilege, and because Steinbrecher was not unfairly prejudiced by Wapnick’s assertion of the privilege.

    Court’s Reasoning

    The court distinguished between the privilege against self-incrimination accorded to an accused in a criminal case and that accorded to an ordinary witness or a party in a civil case. A criminal defendant waives the privilege by testifying at trial, but an ordinary witness does not waive the privilege merely by testifying.

    The court stated, “where the previous disclosure by an ordinary witness is not an actual admission of guilt or incriminating facts, he is not deprived of the privilege of stopping short in his testimony whenever it may fairly tend to incriminate him.”

    The court found that Wapnick’s prior statements were general denials made in a defensive posture to vacate an ex parte order of arrest. They were not a voluntary, knowing relinquishment of his Fifth Amendment rights.

    The court emphasized that the privilege cannot be used as a weapon to unfairly prejudice an adversary. Here, Wapnick’s assertion of the privilege did not deprive Steinbrecher of information necessary to his case or give Wapnick an unfair advantage.

    The court noted that allowing the default judgment to stand would amount to a civil forfeiture for the good-faith exercise of a constitutional right.

    The court reinstated Wapnick’s answer and permitted Steinbrecher to examine Wapnick before trial, given that the criminal indictments against him had been resolved.

  • People v. Tomasello, 21 N.Y.2d 143 (1967): Perjury Prosecution of a Grand Jury Target

    21 N.Y.2d 143 (1967)

    A prospective defendant or target of a grand jury investigation is not immune from perjury prosecution for knowingly false testimony, even if compelled to testify, as the immunity protects against past crimes, not the act of perjury itself.

    Summary

    Tomasello, a target in a grand jury investigation into the theft of topsoil, was indicted for perjury after denying he received topsoil from Zara Contracting Company. He moved to dismiss the indictment, arguing his constitutional rights were violated because he was compelled to testify against himself. The lower courts agreed, but the Court of Appeals reversed, holding that while Tomasello’s compelled testimony grants him immunity from prosecution for substantive crimes related to the topsoil theft, it does not shield him from perjury if he lied under oath. The court reasoned that immunity is for past crimes, not a license to commit perjury during testimony.

    Facts

    The Attorney-General initiated an investigation into crimes related to public works projects. A grand jury in Suffolk County investigated Zara Contracting Company for allegedly stealing topsoil from a Long Island Expressway construction site. Alfred Tomasello was subpoenaed after evidence suggested he received building materials from Zara for private construction. Tomasello denied receiving topsoil or other materials from Zara.

    Procedural History

    The grand jury indicted Tomasello for first-degree perjury. Tomasello moved to dismiss the indictment, arguing his constitutional rights were violated. The Supreme Court granted the motion, dismissing the indictment. The Appellate Division affirmed, relying on prior case law. The Court of Appeals reversed the Appellate Division’s order and reinstated the indictment, but allowed Tomasello to renew his motion based on insufficient evidence before the grand jury.

    Issue(s)

    Whether a prospective defendant or target of a grand jury investigation is immune from indictment and prosecution for perjury if their testimony is found to be willfully false, despite the fact that their testimony was compelled and thus grants immunity from prosecution for substantive crimes based on that testimony?

    Holding

    No, because the constitutional privilege against self-incrimination protects against prosecution for past crimes, but does not provide a license to commit perjury; therefore, compelled testimony, while granting immunity from substantive crimes, does not shield a witness from perjury charges if the testimony is knowingly false.

    Court’s Reasoning

    The Court reasoned that automatic protection from prosecution for substantive crimes based on compelled testimony should not simultaneously immunize the witness from perjury if they knowingly lie. The court adopted the reasoning from Glickstein v. United States, stating, “it cannot be conceived that there is power to compel the giving of testimony where no right exists to require that the testimony shall be given under such circumstances, and safeguards as to compel it to be truthful…the immunity afforded by the constitutional guarantee relates to the past and does not endow the person who testifies with a license to commit perjury.” The Court emphasized that the privilege protects against compelled self-incrimination regarding past acts, not future acts of perjury committed during the testimony itself. The court quoted Wigmore on Evidence: “the perjured utterance is not ‘evidence’ or ‘testimony’ to a crime but is the very act of crime itself; the compulsion is not to testify falsely but to testify truly”. The Court concluded that allowing perjury to go unpunished would undermine justice. The court also addressed Tomasello’s other grounds for dismissal. It affirmed the Attorney-General’s authority to appear before the grand jury. Finally, the court remanded the case to allow Tomasello to challenge the sufficiency of the evidence supporting the perjury indictment.

  • Zuckerman v. Greason, 21 N.Y.2d 430 (1968): Scope of Fifth Amendment in Attorney Disciplinary Proceedings

    Zuckerman v. Greason, 21 N.Y.2d 430 (1968)

    The Fifth Amendment’s protection against self-incrimination applies only to criminal cases, not to attorney disciplinary proceedings, and thus does not prevent the use of an attorney’s disclosures in such proceedings, provided those disclosures cannot be used against them in a criminal case.

    Summary

    This case addresses whether an attorney’s disclosures in a disciplinary proceeding, made under the then-existing (but later overruled) precedent that compelled such testimony, can be used against them. The Court of Appeals held that the Fifth Amendment’s protection against self-incrimination applies only to criminal cases, not disciplinary proceedings. Therefore, the disclosures can be used in disciplinary actions, as long as they are not used in subsequent criminal proceedings against the attorney. The court reasoned that lawyers, as officers of the court, are subject to the Appellate Division’s supervisory powers, and the constitutional privilege against self-incrimination is limited to evidence that could be used in a criminal case.

    Facts

    Appellants Zuckerman and Haber, attorneys, were subject to disciplinary proceedings. Charges against them included submitting misleading medical bills to insurance companies, building up medical bills by referring clients to specialists unnecessarily, and using investigators to solicit clients in violation of ethical canons. Initially, Zuckerman was disbarred and Haber was suspended. The Appellate Division sustained several charges, including a charge against Zuckerman for failure to cooperate by invoking the Fifth Amendment regarding his tax records.

    Procedural History

    The Appellate Division initially disbarred Zuckerman and suspended Haber. The U.S. Supreme Court granted certiorari, vacated the Appellate Division’s order, and remanded the case in light of Spevack v. Klein, which overruled Cohen v. Hurley. On remand, the Appellate Division modified its order to dismiss the charge related to Zuckerman’s Fifth Amendment invocation but otherwise reinstated its prior decision. The New York Court of Appeals reversed this decision due to lack of due process (failure to provide notice and an opportunity to be heard) and remanded the matter to the Appellate Division. After a hearing, the Appellate Division reinstated its prior order, leading to this appeal.

    Issue(s)

    Whether disclosures made by attorneys in disciplinary proceedings can be used against them in those proceedings when the disclosures were made under the compulsion of then-existing precedent that has since been overruled, and whether such use violates the Fifth Amendment privilege against self-incrimination.

    Holding

    No, because the Fifth Amendment’s protection against self-incrimination applies only in criminal cases and does not prevent the use of an attorney’s disclosures in a disciplinary proceeding, provided those disclosures cannot be used against them in a criminal case.

    Court’s Reasoning

    The court reasoned that disciplinary proceedings are civil in nature, not criminal. The Fifth Amendment explicitly states that no person “shall be compelled in any criminal case to be a witness against himself” (italics supplied). Therefore, the constitutional privilege only applies to evidence that might be used against the individual in a criminal case. While the attorneys may have believed they were compelled to disclose information under the authority of Cohen v. Hurley, which at the time allowed disbarment for invoking the Fifth Amendment, the subsequent decision in Spevack v. Klein only prevents disbarment *solely* for invoking the Fifth Amendment. It does not create a blanket privilege to withhold evidence in disciplinary proceedings that could not lead to criminal prosecution. The court emphasized that lawyers are officers of the court, subject to the Appellate Division’s supervisory powers. They can choose to reveal their professional conduct for scrutiny. The court distinguished Garrity v. New Jersey, noting it concerned the review of criminal convictions, whereas this case involves disciplinary proceedings. Judge Cardozo’s language from Matter of Rouss was quoted: “But to bring him within the protection of the Constitution, the disclosure asked of him must expose him to punishment for crime.”

  • Gardner v. Broderick, 20 N.Y.2d 227 (1967): Public Employee’s Duty to Answer Questions Regarding Job Performance

    Gardner v. Broderick, 20 N.Y.2d 227 (1967)

    A public employee may be dismissed for refusing to answer questions directly related to the performance of their official duties, even if they invoke their Fifth Amendment right against self-incrimination, as long as the questions specifically relate to job performance and they are not compelled to waive immunity from criminal prosecution.

    Summary

    Gardner, a New York City police officer, was dismissed for refusing to sign a waiver of immunity and answer questions before a grand jury investigating police corruption. The New York Court of Appeals upheld his dismissal, distinguishing between compelling a waiver of immunity (unconstitutional) and requiring an employee to account for their job performance (permissible). The court reasoned that public employees have a duty to be candid about their job performance, and refusing to answer questions relevant to their fitness for duty constitutes insubordination justifying dismissal. The court emphasized that the employee was not compelled to incriminate himself, but merely to provide information relevant to his job.

    Facts

    In August 1965, a grand jury investigated bribery and corruption accusations against NYC police officers related to illicit gambling. Gardner, a police officer, was subpoenaed to appear before the grand jury while already facing departmental charges.
    He was asked to sign a limited waiver of immunity for misconduct in office, as per the New York City Charter and New York Constitution. Gardner was informed that refusing the waiver would result in his dismissal. He refused to sign the waiver. Following an administrative hearing, he was dismissed from the police force.

    Procedural History

    Gardner initiated an Article 78 proceeding, seeking reinstatement as a patrolman, arguing his dismissal was unconstitutional. The lower court ruled against Gardner. Gardner appealed to the New York Court of Appeals.

    Issue(s)

    Whether a public employee can be dismissed from their position for refusing to answer questions regarding the performance of their official duties, when compelled to waive their Fifth Amendment privilege against self-incrimination.

    Holding

    No, because the employee’s refusal to speak on matters related to his official duties constituted insubordination, which is a valid basis for dismissal, but the state cannot compel a waiver of immunity.

    Court’s Reasoning

    The court distinguished this case from situations where public employees are compelled to waive their constitutional privilege against self-incrimination under threat of dismissal, which the Supreme Court deemed unconstitutional in Garrity v. New Jersey. The court reasoned that while the government cannot use the threat of discharge to obtain incriminating evidence, public employees have a duty to be forthcoming about their job performance.

    The court stated that Gardner’s refusal to answer questions about his official duties, a subject about which “the public had a right to know and the petitioner was under a duty to reveal,” constituted insubordination justifying his dismissal. The court emphasized the distinction between compelling a waiver of immunity (impermissible) and requiring an employee to account for their job performance (permissible). The court noted, “[t]hey have no constitutional right to remain in office when they refuse to discuss with frankness and candor whether they have faithfully performed their duties.” The court distinguished attorneys from public employees referencing Justice Fortas’ concurring opinion in Spevack v. Klein, noting that attorneys are not employees of the state and do not have the same responsibility to account to the state for their actions.

  • People ex rel. Keitt v. McMann, 18 N.Y.2d 257 (1966): Availability of Habeas Corpus for Constitutional Violations

    People ex rel. Keitt v. McMann, 18 N.Y.2d 257 (1966)

    Habeas corpus is an appropriate remedy to test a claim that a relator has been imprisoned after having been deprived of a fundamental constitutional or statutory right in a criminal prosecution.

    Summary

    Keitt petitioned for a writ of habeas corpus, alleging his imprisonment was illegal because the prosecution introduced evidence of a prior conviction before the jury, violating his due process rights and privilege against self-incrimination. The New York Court of Appeals addressed whether habeas corpus was the proper remedy. The court held that habeas corpus is available to test claims of imprisonment following deprivation of fundamental constitutional or statutory rights. However, the court affirmed the denial of the writ on the merits, finding that Keitt had not been deprived of any constitutional right due to his own conduct at trial.

    Facts

    Keitt was indicted for robbery and carrying a dangerous weapon. At trial, the prosecution introduced evidence of Keitt’s prior conviction for attempted robbery after Keitt stood mute on the matter. This was done pursuant to Section 275-b of the Code of Criminal Procedure. Keitt’s counsel objected. Keitt had previously stated he would testify in his defense, and he later did, admitting the prior conviction and other crimes. Keitt appealed his conviction, and leave to appeal to the New York Court of Appeals was denied. His petition for certiorari to the U.S. Supreme Court was also denied.

    Procedural History

    Keitt petitioned for a writ of habeas corpus, which was dismissed by the Supreme Court, Clinton County. The Appellate Division affirmed the dismissal. Keitt appealed to the New York Court of Appeals by permission.

    Issue(s)

    Whether habeas corpus is an appropriate remedy to test a claim that the introduction of certain evidence violated both due process and the privilege against self-incrimination, thereby depriving the relator of a fundamental constitutional or statutory right.

    Holding

    Yes, because habeas corpus is an appropriate proceeding to test a claim that the relator has been imprisoned after having been deprived of a fundamental constitutional or statutory right in a criminal prosecution.

    Court’s Reasoning

    The Court of Appeals acknowledged a subtle shift from its narrow view of habeas corpus relief, which traditionally required only that the convicting court have jurisdiction over the person, the crime, and the power to impose the sentence. Citing precedent such as People ex rel. Colan v. La Vallee, the court recognized that the use of “jurisdiction” and “void judgments” in prior cases was more about historical respect for habeas corpus than a true limitation on its scope.

    The court clarified that habeas corpus is available when a prisoner claims a deprivation of a substantial constitutional right on the face of the record. However, the court cautioned that habeas corpus is not the only or preferred means of vindicating such rights, and it is not a substitute for appeal to review mere trial errors. Departure from traditional appellate processes should only occur when dictated by practicality and necessity.

    Regarding the merits of Keitt’s claim, the court found that in view of Keitt’s conduct at trial, specifically his initial silence followed by his decision to testify and admit to the prior conviction, he had not been deprived of any constitutional right. The court recognized the flexibility of the writ, noting that the legislature did not intend to change the instances in which the writ was available.

    Judge Van Voorhis concurred, arguing the relator was not aggrieved without reaching the constitutional questions.

  • People v. McLucas, 15 N.Y.2d 167 (1965): Improper Judicial Comment on Defendant’s Failure to Testify

    People v. McLucas, 15 N.Y.2d 167 (1965)

    A trial court’s unsolicited remarks drawing attention to a defendant’s failure to testify, even when coupled with a later instruction that no unfavorable inference should be drawn, constitutes reversible error because it violates the defendant’s privilege against self-incrimination.

    Summary

    McLucas was convicted of burglary in the third degree. During the trial, a police officer testified about arresting McLucas and a conversation where McLucas denied the crime but admitted to avoiding home because he knew the police were looking for him. During jury instructions, the judge emphasized that McLucas’s out-of-court denial did not substitute for sworn testimony, improperly highlighting his failure to testify. Despite later instructing the jury not to draw negative inferences from McLucas’s silence, the Court of Appeals reversed the conviction, holding that the initial remarks violated McLucas’s constitutional right against self-incrimination, and no formal exception was needed to preserve the issue for appeal.

    Facts

    • McLucas was arrested approximately five months after an alleged burglary.
    • A police officer testified that McLucas admitted he knew the police were looking for him and that he had been staying in New Jersey and Connecticut.
    • McLucas denied committing the burglary during the same conversation.

    Procedural History

    • McLucas was convicted of burglary in the third degree.
    • The conviction was unanimously affirmed without opinion by a lower court.
    • The New York Court of Appeals reversed the conviction.

    Issue(s)

    • Whether a trial court’s comments during jury instructions, highlighting a defendant’s failure to testify, violate the defendant’s privilege against self-incrimination, even if the court later instructs the jury not to draw negative inferences from the defendant’s silence.
    • Whether the failure to expressly note an exception to the charge, as required by Section 420-a of the Code of Criminal Procedure, precludes appellate review of a constitutional violation.

    Holding

    • Yes, because the court’s remarks improperly drew attention to the defendant’s failure to testify, thereby violating his Fifth Amendment rights as applied to the states.
    • No, because a deprivation of a fundamental constitutional right is reviewable on appeal, even in the absence of an explicit exception to the charge.

    Court’s Reasoning

    The court reasoned that the trial judge’s repeated emphasis on the fact that the defendant’s out-of-court statement was not “sworn testimony from this witness chair” directly and improperly highlighted the defendant’s failure to testify. This violated the defendant’s constitutional right against self-incrimination. The court cited prior cases like People v. Minkowitz, People v. Leavitt, and People v. Hetenyi, which established that any statement from a trial judge that undermines the protection afforded by the statute regarding a defendant’s choice not to testify constitutes reversible error. The court emphasized, “In the trial of a criminal case it can never be necessary to add anything to the plain and simple language of the statute.” The later corrective instruction was insufficient to cure the prejudice created by the initial improper remarks. Furthermore, the court relied on Malloy v. Hogan, which extended the Fifth Amendment’s protection against self-incrimination to state court proceedings via the Fourteenth Amendment, and held that the absence of a formal exception did not preclude appellate review of a fundamental constitutional violation. The dissent is not mentioned because it did not provide substantive reasoning.