385 U.S. 493 (1967), 13, Garrity v. New Jersey

Docket Nº:No. 13
Citation:385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562
Party Name:Garrity v. New Jersey
Case Date:January 16, 1967
Court:United States Supreme Court

Page 493

385 U.S. 493 (1967)

87 S.Ct. 616, 17 L.Ed.2d 562



New Jersey

No. 13

United States Supreme Court

Jan. 16, 1967

Argued November 10, 1966



Appellants, police officers in certain New Jersey boroughs, were questioned during the course of a state investigation concerning alleged traffic ticket "fixing." Each officer was first warned that: anything he said might be used against him in a state criminal proceeding; he could refuse to answer if the disclosure would tend to incriminate him; if he refused to answer, he would be subject to removal from office. The officers' answers to the questions were used over their objections in subsequent prosecutions, which resulted in their convictions. The State Supreme Court, on appeal, upheld the convictions despite the claim that the statements of the officers were coerced by reason of the fact that, if they refused to answer, they could, under the New Jersey forfeiture of office statute, lose their positions. That statute provides that a public employee shall be removed from office if he refuses to testify or answer any material question before any commission or body which has the right to inquire about matters relating to his office or employment on the ground that his answer may incriminate him. On the ground that the only real issue in the case was the voluntariness of the statements, the State Supreme Court declined to pass upon the constitutionality of the statute, though the statute was considered relevant for the bearing it had on the voluntary character of the statements used to convict the officers. The officers appealed to this Court under 28 U.S.C. § 1257(2), and the question of jurisdiction was postponed to a hearing on the merits.


1. The forfeiture of office statute is too tangentially involved to satisfy the requirements of 28 U.S.C. § 1257(2). The only bearing it had was whether, valid or not, the choice between being discharged under it for refusal to answer and self-incrimination rendered the statements products of coercion. The appeal is dismissed, the papers are treated as a petition for certiorari, and certiorari is granted. Pp. 495-496.

2. The threat of removal from public office under the forfeiture of office statute to induce the petitioners to forgo the privilege against self-incrimination secured by the Fourteenth Amendment rendered the resulting statements involuntary, and therefore inadmissible in the state criminal proceedings. Pp. 496-500.

Page 494

(a) The choice given petitioners either to forfeit their jobs or to incriminate themselves constituted coercion. Pp. 496-498.

(b) Whether there was a "waiver" is a federal question. P. 498.

(c) Where the choice is "between the rock and the whirlpool" (Frost Trucking Co. v. Railroad Comm'r, 271 U.S. 583, 593), the decision to "waive" one or the other is made under duress. P. 498.

Appeal dismissed, and certiorari granted; 44 N.J. 209, 207 A.2d 689; 44 N.J. 259, 208 A.2d 146, reversed.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Appellants were police officers in certain New Jersey boroughs. The Supreme Court of New Jersey ordered that alleged irregularities in handling cases in the municipal courts of those boroughs be investigated by the Attorney General, invested him with broad powers of inquiry and investigation, and directed him to make a report to the court. The matters investigated concerned alleged fixing of traffic tickets.

Before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that, if he refused to answer, he would be subject to removal from office.1

Page 495

Appellants answered the questions. No immunity was granted, as there is no immunity statute applicable in these circumstances. Over their objections, some of the answers given were used in subsequent prosecutions for conspiracy to obstruct the administration of the traffic laws. Appellants were convicted, and their convictions were sustained over their protests that their statements were coerced2 by reason of the fact that, if they refused to answer, they could lose their [87 S.Ct. 618] positions with the police department. See 44 N.J. 209, 207 A.2d 689, 44 N.J. 259, 208 A.2d 146.

We postponed the question of jurisdiction to a hearing on the merits. 383 U.S. 941. The statute whose validity was sought to be "drawn in question," 28 U.S.C. § 1257(2), was the forfeiture statute.3 But the New

Page 496

Jersey Supreme Court refused to reach that question (44 N.J. at 223, 207 A.2d at 697), deeming the voluntariness of the statements as the only issue presented. Id. at 220-222, 207 A.2d at 695-696. The statute is therefore too tangentially involved to satisfy 28 U.S.C. § 1257(2), for the only bearing it had was whether, valid or not, the fear of being discharged under it for refusal to answer, on the one hand, and the fear of self-incrimination, on the other, was "a choice between the rock and the whirlpool,"4 which made the statements products of coercion in violation of the Fourteenth Amendment. We therefore dismiss the appeal, treat the papers as a petition for certiorari (28 U.S.C. § 2103), grant the petition, and proceed to the merits.

We agree with the New Jersey Supreme Court that the forfeiture of office statute is relevant here only for the bearing it has on the voluntary character of the statements used to convict petitioners in their criminal prosecutions.

The choice imposed on petitioners was one between self-incrimination or job forfeiture. Coercion that vitiates a confession under Chambers v. Florida, 309 U.S. 227, and related cases can be "mental, as well as physical"; "the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, 361 U.S. 199, 206. Subtle pressures (Leyra v. Denno, 347 U.S. 556; Haynes v. Washington, 373 U.S. 503) may be as telling as coarse and vulgar ones. The question is whether the accused was deprived of his "free choice to admit, to deny, or to refuse to answer." Lisenba v. California, 314 U.S. 219, 241.

We adhere to Boyd v. United States, 116 U.S. 616, a civil forfeiture action against property. A statute offered

Page 497

the owner an election between producing a document or forfeiture of the goods at issue in the proceeding. This was held to be a form of compulsion in violation of both the Fifth Amendment and the Fourth Amendment. Id. at 634-635. It is that principle that we adhere to and apply in Spevack v. Klein, post, p. 511.

The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, 384 U.S. 436, 464-465, is "likely to exert such pressure upon an individual as to disable him from making a free and rational choice." We think the statements were infected by [87 S.Ct. 619] the coercion5 inherent in this scheme of questioning,

Page 498

and cannot be sustained as voluntary under our prior decisions.

It is said that there was a "waiver." That, however, is a federal question for us to decide. Union Pac. R.R. Co. v.Pub. Service Comm., 248 U.S. 67, 69-70; Stevens v. Marks, 383 U.S. 234, 243-244. The Court, in Union Pac. R.R. Co. v.Pub. Service Comm., supra, in speaking of a certificate exacted under protest and in violation of the Commerce Clause, said:

Were it otherwise, as conduct under duress involves a choice, it always would be possible for a State to impose an unconstitutional burden by the threat of penalties worse than it in case of a failure to accept it, and then to declare the acceptance voluntary. . . .

Id. at 70.

Where the choice is "between the rock and the whirlpool," duress is inherent in deciding to "waive" one or the other.

It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called.


Page 499

In that case, appellant paid under protest. In these cases also, though petitioners succumbed to compulsion, they preserved their objections, raising them at the earliest possible point. Cf. Abie State Bank v. Bryan, 282 U.S. 765, 776. The cases are therefore quite different from the situation where one who is anxious to make a clean breast of the whole affair volunteers the information.

Mr. Justice Holmes in McAulife v. New Bedford, 155 Mass. 216, 29 N.E. 517, stated a dictum on which New Jersey heavily relies:

The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. [87 S.Ct. 620] There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle, the city may impose any reasonable condition upon holding offices within its control.

Id. at 220, 29 N.E. at 517-518.

The question in this case, however, is not cognizable in those terms. Our question is whether a State, contrary to the requirement of the Fourteenth Amendment, can use the threat of discharge to secure incriminatory evidence against an employee.

We held in Slochower v. Board of Education, 350 U.S. 551, that a public school teacher could not be discharged merely because he had invoked the Fifth Amendment privilege against self-incrimination when questioned by a congressional committee:


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