Malloy v. Hogan/Dissent White

by Byron White

Mr. Justice WHITE, with whom Mr. Justice STEWART joins, dissenting.

The Fifth Amendment safeguards an important complex of values, but it is difficult for me to perceive how these values are served by the Court's holding that the privilege was properly invoked in this case. While purporting to apply the prevailing federal standard of incrimination-the same standard of incrimination that the Connecticut courts applied-the Court has all but stated that a witness' invocation of the privilege to any question is to be automatically, and without more, accepted. W th deference, I prefer the rule permitting the judge rather than the witness to determine when an answer sought is incriminating.

The established rule has been that the witness' claim of the privilege is not final, for the privilege qualifies a citizen's general duty of disclosure only when his answers would subject him to danger from the criminal law. The privilege against self-incrimination or any other evidentiary privilege does not protect silence which is solely an expression of political protest, a desire not to inform, a fear of social obloquy or economic disadvantage or fear of prosecution for future crimes. Smith v. United States, 337 U.S. 137, 147, 69 S.Ct. 1000, 1005, 93 L.Ed. 1264; Brown v. Walker, 161 U.S. 591, 605, 16 S.Ct. 644, 650, 40 L.Ed. 819. If the general duty to testify when subpoenaed is to remain and the privilege is to be retained as a protection against compelled incriminating answers, the trial judge must be permitted to make a meaningful determination of when answers tend to incriminate. See The Queen v. Boyes, 1 B. & S. 311, 329-330 (1861); Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198. I do not think today's decision permits such a determination.

Answers which would furnish a lead to other evidence needed to prosecute or convict a claimant of a crime-clue evidence-cannot be compelled, but 'this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.' Hoffman v. United States, 341 U.S. 479, at 486, 71 S.Ct. 814, at 818; Mason v. United States, 244 U.S. 362, 37 S.Ct. 621. Of course the witness is not required to disclose so much of the danger as to render his privilege nugatory. But that does not justify a flat rule of no inquiry and automatic acceptance of the claim of privilege. In determining whether the witness has a reasonable apprehension, the test in the federal courts has been that the judge is to decide from the circumstances of the case, his knowledge of matters surrounding the inquiry and the nature of the evidence which is demanded from the witness. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814; Mason v. United States, 244 U.S. 362, 37 S.Ct. 621. Cf. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438. This rule seeks and achieves a workable accommodation between what are obviously important competing interests. As Mr. Chief Justice Marshall said: 'The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. * * * When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness.' In re Willie, 25 Fed.Cas.No.14,692e, at 39-40. I would not only retain this rule but apply it in its present form. Under this test, Malloy's refusals to answer some, if not all, of the questions put to him were clearly not privileged.

In November 1959, Malloy was arrested in a gambling raid in Hartford and was convicted of pool selling, an offense defined as occupying and keeping a building containing gambling apparatus. After a 90-day jail term, his one-year sentence was suspended and Malloy was placed on probation for two years. In early 1961, Malloy was summoned to appear in an investigation into whether crimes, including gambling, had been committed in Hartford County, and was asked various questions obviously and solely designed to ascertain who Malloy's associates were in connection with his pool-selling activities in Hartford in 1959. Malloy initially refused to answer virtually all the questions put to him, including such innocuous ones as whether he was the William Malloy arrested and convicted of pool selling in 1959. After he was advised to consult with counsel and did so, he declined to answer each one of the following questions on the ground that it would tend to incriminate him:

'Q. Now, on September 11, 1959, when you were arrested at 600 Asylum Street, and the same arrest for which you were convicted in the Superior Court on November 5, 1959, for whom were you working?

'Q. On September 11, 1959, when you were arrested, and the same arrest for which you were convicted in the Superior Court on November 5, 1959, who furnished the money to pay your fine when you were convicted in the Superior Court?

same arrest for which you were convicted on November 5, 1959, who selected your bondsman?

'Q. As a result of your arrest on September 11, 1959, and the same arrest for which you were convicted on November 5, 1959, who furnished the money to pay your fine?

'Q. Do you know whose apartment it was (that you were arrested in on September 11, 1959)?

'Q. Do you know John Bergoti?

'Q. I ask you again, Mr. Malloy, now, so there will be no misunderstanding of what I want to know. When you were arrested on September 11, 1959, at 600 Asylum Street in Hartford, and the same arrest for which you were convicted in Superior Court on November 5, 1959, for whom were you working?'

It was for refusing to answer these questions that Malloy was cited for contempt, the Connecticut courts noting that the privilege does not protect one against informing on friends or associates.

These were not wholly innocuous questions on their face, but they clearly were in light of the finding, of which Malloy was told, that he was immune from prosecution for any pool-selling activities in 1959. As the Connecticut Supreme Court of Errors found, the State bore its burden of proving that the statute of limitations barred any prosecution for any type of violation of the state pool-selling statute in 1959. Malloy advanced the claim before the Connecticut courts, and again before this Court, that he could perhaps be prosecuted for a conspiracy and that the statute of limitations on a felony was five years. But the Connecticut courts were unable to find any state statute which Malloy's gambling activities in 1959 in Hartford, the subject of the inquiry, could have violated and Malloy has not yet pointed to one. Beyond this Malloy declined to offer any explanation or hint at how the answers sought could have incriminated him. In these circumstances it is wholly speculative to find that the questions about others, not Malloy, posed a substantial hazard of criminal prosecution to Malloy. Theoretically, under some unknown but perhaps possible conditions any fact is potentially incriminating. But if this be the rule, there obviously is no reason for the judge, rather than the witness, to pass on the claim of privilege. The privilege becomes a general one against answering distasteful questions.

The Court finds that the questions were incriminating because petitioner 'might apprehend that if (his associates in 1959) were still engaged in unlawful activity, disclosure of (their names) might furnish a link in a chain of evidence sufficient to connect the petitioner with a more recent crime for which he might still be prosecuted.' Ante, p. 13. The assumption necessary to the above reasoning is that all persons, or all who have committed a misdemeanor, are continuously engaged in crime. This is but another way of making the claim of privilege automatic. It is not only unrealistic generally but peculiarly inappropriate in this case. Unlike cases relied on by the Court, like Hoffman v. United States, supra, where the claimant was known to be involved in rackets in the area, which were the subject of the inquiry, and had a 'broadly published police record,' Malloy had no record as a felon. He had engaged once in an unlawful activity-pool selling-a misdemeanor and was given a suspended sentence. He had been on probation since that time and was on probation at the time of the inquiry. Again, unlike Hoffman, nothing in these questions indicates petitioner was called because he was suspected of criminal activities after 1959. There is no support at all in this record for the cynical assumption that he had committed criminal acts after his release in 1960.

Even on the Court's assumption that persons convicted of a misdemeanor are necessarily suspect criminals, sustaining the privilege in these circumstances is unwarranted, for Malloy placed no reliance on this theory in the courts below or in this Court. In order to allow the judge passing on the claim to understand how the answers sought are incriminating, I would at least require the claimant to state his grounds for asserting the privilege to questions seemingly irrelevant to any incriminating matters.

Adherence to the federal standard of incrimination stated in Mason and Hoffman, supra, in form only, while its content is eroded in application, is hardly an auspicious beginning for application of the privilege to the States. As was well stated in a closely analogous situation, '(t)o continue a rule which is honored by this Court only with lip service is not a healthy thing and in the long run will do disservice to the federal system.' Gideon v. Wainwright, 372 U.S. 335, at 351, 83 S.Ct. 792, at 800 (HARLAN, J., concurring).

I would affirm.

Notes