In re Silverberg

• Decision Date: 16 October 1974
• Citation: 327 A.2d 106,459 Pa. 107
• Parties: In the Matter of Edward L. SILVERBERG et al.
• Court: Pennsylvania Supreme Court

327 A.2d 106

459 Pa. 107

In the Matter of Edward L. SILVERBERG et al.

Supreme Court of Pennsylvania.

October 16, 1974.

[Copyrighted Material Omitted]

Thomas B. Rutter, Philadelphia, for appellants.

Special Judicial Investigation; William P. Stewart, Philadelphia, for appellee.

Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS Justice.

By order of October 28, 1971, the President Judge of the Court of Common Pleas of Philadelphia authorized a special judicial investigation into unethical conduct by members of the Philadelphia bar. In the course of this investigation appellants were called before an investigating judge who was to determine whether the evidence against them warranted institution of formal charges. The investigating judge concluded that formal charges were indicated.

Appellants were then tried before a three-judge special disciplinary court. The three-judge court found that appellants had engaged in unethical conduct, specifically, by soliciting negligence cases and submitting inflated medical cost reports. Accordingly, Silverberg, Levitan, and Oxman were ordered suspended from the practice of law for one, three, and five years respectively. The hearing court stayed the orders of suspension pending this appeal. ^[1]

At the formal disciplinary hearing, Oxman and Levitan testified in their own defense; they denied any wrongdoing. On cross-examination special counsel for the investigation was permitted to elicit that appellants had claimed the privilege against self-incrimination in the preliminary proceeding before the single investigating judge. ^[2] These references to appellants' exercise of their constitutional rights were allegedly designed only to impeach their credibility. We conclude that utilization, over objection, ^[3] of appellant's assertion of the privilege against self-incrimination violated their rights under the Fifth Amendment to the United States Constitution ^[4] and article I, section 9 of the Pennsylvania Constitution P.S. ^[5] The orders suspending appellants must be reversed ^[6] and a new disciplinary hearing held. ^[7]

In Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), the United States Supreme Court faced the question before us today. Defendant Halperin was accused of corruptly influencing witnesses before a federal grand jury. When called before another grand jury, he declined to answer certain questions because his answers might incriminate him. At trial he answered the same questions in a way consistent with innocence. The government was permitted, over objection, to cross-examine Halperin on his allegedly inconsistent responses. The trial judge however indicated that this cross-examination could be considered only as reflecting on the witness' credibility. ^[8]

The Supreme Court reversed. Justice Harlan, writing for the majority, noted that the practice of impeaching a witness' credibility by bringing out a prior claim of the privilege against self-incrimination 'has grave constitutional overtones.' 353 U.S. at 423, 77 S.Ct. at 983--984. Reversal, however, was based on the Court's supervisory power. Id. at 424, 77 S.Ct. at 984. Two grounds for reversal were advanced. First, the Court, for the sake of argument, assumed that Halperin's trial testimony and earlier claim of privilege were inconsistent. It then held that the potential for prejudice inherent in this cross-examination so far outweighed its probative value that the trial court in its sound discretion should not have permitted the questions. Id. at 420--421, 77 S.Ct. at 982.

Second, examining the defendant's testimony further, the Court concluded that the cross-examination was also improper because only prior inconsistent statements may be used to impeach. See 3A J. Wigmore, Evidence § 1040 (Chadbourn rev. 1970). Both the claim of privilege before the grand jury and the exculpatory answers at trial were 'wholly consistent with innocence.' 353 U.S. at 421, 77 S.Ct. at 982. Therefore no inconsistency existed and impeachment should not have been permitted.

The concurring opinion of Justice Black, joined by then Chief Justice Warren, and Mr. Justice Douglas and Mr. Justice Brennan, addressed the constitutional issue directly.

'I agree with the Court that use of this claim of constitutional privilege to reflect upon Halperin's credibility was error, but I do not, like the Court, rest my conclusion on the special circumstances of this case. I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution.'

Id. at 425--426, 77 S.Ct. at 984--985.

Since Grunewald was decided, several courts have concluded that the reasoning of the concurring opinion, which, of course, was in no way contradicted by the majority's failure to reach the constitutional issue, precludes cross-examination by reference to a prior claim of the privilege against self-incrimination. Fowle v. United States, 410 F.2d 48, 51--56 (9th Cir. 1969); Fagundes v. United States, 340 F.2d 673, 677--678 (1st Cir. 1965); Dean v. Commonwealth, 209 Va. 666, 166 S.E.2d 228 (1969); State v. Greer, 17 Ariz.App. 162, 496 P.2d 152 (1972); People v. Jordan, 7 Mich.App. 28 151 N.W.2d 242 (1967); State v. Martin, 84 N.M. 27, 498 P.2d 1370 (Ct.App.1972); Messier v. State, 428 P.2d 338 (Okl.Ct.Crim.App.1967). ^[9]

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which held the fifth amendment to prohibit comment on a defendant's silence, adopted the reasoning of the Grunewald concurring opinion.

'For comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice' . . . which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.'

Griffin v. California, supra at 614, 85 S.Ct. at 1232--1233 (citations omitted). See Fowle v. United States, supra, 410 F.2d at 53; Dean v. Commonwealth, supra, 209 Va. at 670, 166 S.E.2d at 231; State v. Greer, supra, 17 Ariz.App. at 165, 496 P.2d at 155; cf. Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). See also Fagundes v. United States, supra; Messier v. State, supra. We agree that an accused's constitutional right against self-incrimination is violated when a prior claim of the privilege against self-incrimination is introduced to impeach his credibility. ^[10]

It is elementary that a prior statement may be used to impeach a witness' credibility only if that statement is in fact inconsistent with the witness' testimony at trial. See 3A J. Wigmore, Evidence § 1040 (Chadbourn rev. 1970). It follows that when the three-judge court permitted the cross-examination in question it must necessarily have inferred that the prior claim of privilege was inconsistent with the later testimony of innocence.

The record does not establish that the three judges who sat as triers of fact in appellants' case directly attributed any indicia of guilt to the claims of privilege. But in finding the claims inconsistent with innocence and considering them to impeach appellants' credibility the Court made a constitutionally impermissible inference. As this Court stated more than a century ago:

'If the privilege claimed by the witness be allowed the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it.'

Phelin v. Kenderdine, 20 Pa. 354, 363 (1853). See Johnson v. United States, 318 U.S. 189, 196--197, 63 S.Ct. 549, 553, 87 L.Ed. 704 (1943).

Appellants testified that they pleaded the privilege upon advice of counsel. Certainly a reasonable attorney could have many reasons other than concealing guilt for advising a client to claim the privilege at the investigatory stage of disciplinary proceedings. The preliminary proceedings were ex parte; appellants had no opportunity to cross-examine and thus had no means to explain possible exculpatory facts. See Grunewald v. United States, supra, 353 U.S. at 422, 77 S.Ct. at 983. 'The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.' Slochower v. Board of Higher Education, 350 U.S. 551, 557--558, 76 S.Ct. 637, 641, 100 L.Ed. 692 (1956). See E. Griswold, The Fifth Amendment Today 9--30, 53--82 (1957). ^[11]

Just as an attorney may not be disciplined for invoking the privilege in a professional inquiry, Spevack v. Klein, 385 U.S. 511, 514--515, 87 S.Ct. 625, 627--628, 17 L.Ed.2d 574 (1967); Schlesinger Appeal 404 Pa. 584, 614--616, 172 A.2d 835, 849--850 (1961), such invocation may not later be used to impeach his credibility when he asserts innocence. The 'impeaching' cross-examination that was permitted here is 'a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.' Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232--1233, 14 L.Ed.2d 106 (1965); see Grunewald v. United States, 353 U.S. 391, 425--426, 77 S.Ct. 963, 984--985, 1 L.Ed.2d 931 (1957) (concurring opinion).

Here the loss of...