Zicarelli v. New Jersey State Commission of Investigation 8212

• Citation: 406 U.S. 472,92 S.Ct. 1670,32 L.Ed.2d 234
• Decision Date: 22 May 1972
• Docket Number: No. 69,69
• Parties: Joseph Arthur ZICARELLI, Appellant, v. The NEW JERSEY STATE COMMISSION OF INVESTIGATION. —4
• Court: United States Supreme Court

406 U.S. 472

92 S.Ct. 1670

32 L.Ed.2d 234

Joseph Arthur ZICARELLI, Appellant,

v The NEW JERSEY STATE COMMISSION OF INVESTIGATION.

No. 69—4.

Argued Jan. 11, 1972.

Decided May 22, 1972.

Syllabus

After appellant invoked the Fifth Amendment and refused to answer questions concerning organized crime, racketeering, and political corruption in Long Branch, New Jersey, appellee Commission granted him statutory immunity 'from having such responsive answer given by him or such responsive evidence produced by him or evidence derived therefrom used to expose him to criminal prosecution or penalty or to a forfeiture of his estate . . ..' Appellant still refused to answer, contending that full transactional immunity was required, that the statutory ban on the use and derivative use of 'responsive' answers is unconstitutionally vague, and that the immunity would not protect him from foreign prosecution, of which he has a real and substantial fear. Appellant was adjudged to be in contempt and the judgment was upheld on appeal. The New Jersey Supreme Court, construing the responsiveness limitation, held that 'the statute protects the witness against answers and evidence he in good faith believed were demanded.' Commission procedure provides for an advance statement of the subject matter of the questioning and permits a witness to have counsel present at the hearing. Held:

1. The New Jersey statutory immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and is sufficient to compel testimony. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212. p. 441. Pp. 474—476.

2. In light of the State Supreme Court's construction and the context in which the statute operates, the responsiveness limitation is not violative of due process. Pp. 476—478.

3. The self-incrimination privilege protects against real dangers, not remote and speculative possibilities, and here there was no showing that appellant was in real danger of being compelled to disclose information that might incriminate him under foreign law. Pp. 478—481.

55 N.J. 249, 261 A.2d 129, affirmed.

Michael A. Querques, Orange, N.J., for the appellant.

Andrew F. Phelan, Trenton, N.J., for appellee.

George F. Kugler, Jr., Trenton, N.J., for the State of New Jersey, amicus curiae.

Mr. Justice POWELL delivered the opinion of the Court.

This case, like Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, raises questions concerning the conditions under which testimony can be compelled from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination.

The New Jersey State Commission of Investigation¹ subpoenaed appellant to appear on July 8, 1969, to testify concerning organized crime, racketeering, and political corruption in Long Branch, New Jersey.² In the course of several appearances before the Commission, he invoked his privilege against self-incrimination and refused to answer a series of 100 questions. The Commission granted him immunity pursuant to N.J.Rev.Stat. § 52:9M—17(a) (1970), and ordered him to answer the questions. Notwithstanding the grant of immunity, he persisted in his refusal to answer. The Commission then petitioned the Superior Court of Mercer County for an order directing appellant to show cause why he should not be adjudged in contempt of the Commission and committed to jail until such time as he purged himself of contempt by testifying as ordered. At the hearing on the order to show cause, appellant challenged the order to testify on several grounds, one of which was that the statutory immunity was insufficient in several respects to compel testimony over a claim of the privilege. The Superior Court rejected this contention, and ordered appellant incarcerated until such time as he testified as ordered. The Supreme Court of New Jersey certified appellant's appeal before argument in the Appellate Division, and affirmed the judgment of the Superior Court. In re Zicarelli, 55 N.J. 249, 261 A.2d 129 (1970). This Court noted probable jurisdiction and set the case for argument to consider appellant's challenges to the sufficiency of the immunity authorized by the statute. 401 U.S. 933, 91 S.Ct. 916, 28 L.Ed.2d 213 (1971).

I

A majority of the members of the Commission have authority to confer immunity on a witness who invokes the privilege against self-incrimination.³ After the witness testifies under the grant of immunity, the statute provides that:

'he shall be immune from having such responsive answer given by him or such responsive evidence produced by him, or evidence derived therefrom used to expose him to criminal prosecution or penalty or to a forfeiture of his estate, except that such person may nevertheless be prosecuted for any perjury committed in such answer or in producing such evidence, or for contempt for failing to give an answer or produce evidence in accordance with the order of the commission . . .' N.J.Rev.Stat. § 52:9M—17(b) (1970).

This is a comprehensive prohibition on the use and derivative use of testimony compelled under a grant of immunity.⁴ Appellant contends that only full transactional immunity affords protection commensurate with that afforded by the privilege and suffices to compel testimony over a claim of the privilege. We rejected this argument today in Kastigar, where we held that immunity from use and derivative use is coextensive with the scope of the privilege, and is therefore sufficient to compel testimony. We perceive no difference between the degree of protection afforded by the New Jersey statute and that afforded by the federal statute sustained in Kastigar.

Appellant also contends that while immunity from use and derivative use may suffice to secure the protection of the privilege from invasion by jurisdictions other than the jurisdiction seeking to compel testimony, that jurisdiction must grant the greater protection afforded by transactional immunity. In Kastigar, we held that immunity from use and derivative use is commensurate with the protection afforded by the privilege, and rejected the notion that in our federal system a jurisdiction seeking to compel testimony must grant protection greater than that afforded by the privilege in order to supplant the privilege and compel testimony. Our holding in Kastigar is controlling here.

II

Appellant contends that the immunity provided by the New Jersey statute is unconstitutionally vague because it immunizes a witness only against the use and derivative use of 'responsive' answers and evidence, without providing statutory guidelines for determining what is a 'responsive' answer. The statute does not come to us devoid of interpretation, for the Supreme Court of New Jersey construed the responsiveness limitation as follows:

'The limitation is intended to prevent a witness from seeking undue protection by volunteering what the State already knows or will likely come upon without the witness's aid. The purpose is not to trap. Fairly construed, the statute protects the witness against answers and evidence he in good faith believed were demanded.' 55 N.J., at 270—271, 261 A.2d, at 140.

This is not the technical construction of 'responsive' in the legal evidentiary sense that appellant fears,⁵ but, rather, is a construction cast in terms of ordinary English usage⁶ and the good-faith understanding of the average man. The term 'responsive' in ordinary English usage has a well-recognized meaning. It is not as appellant argues, 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).

Moreover, the contention that ambiguity in the term 'responsive' poses undue hazards for a witness testifying under a grant of immunity must be considered in the context in which the statute operates. This is not a penal statute that requires an uncounseled decision by a layman as to what course of action is lawful to pursue. A witness before the Commission is entitled to have in advance of his testimony a statement of the subject matter on which the Commission intends to examine him.⁷ This advance notice of the subject of the inquiry will provide a background and context that will aid a witness in determining what information the questions seek. The New Jersey statute further provides that a witness before the Commission is entitled to have counsel present during the course of the hearing,⁸ and counsel may secure clarification of vague or ambiguous questions in advance of a response by the witness.⁹ The responsiveness limitation is not a trap for the unwary; rather it is a barrier to those who would intentionally tender information not sought in an effort to frustrate and prevent criminal prosecution.¹⁰ The con- text in which the statute operates¹¹ reaffirms our conclusion that the responsiveness limitation does not violate the Due Process Clause of the Fourteenth Amendment.

III

Appellant further asserts that he cannot be compelled to testify before the Commission because his testimony would expose him to danger of foreign prosecution. He argues that he has a real and substantial fear of foreign prosecution, and that he cannot be compelled to incriminate himself under foreign law. It follows, he insists, that he cannot be compelled to testify, irrespective of the scope of the immunity he receives, because neither the New Jersey statute nor the Fifth Amendment privilege can prevent either prosecution or use of his testimony by a foreign sovereign. This Court noted probable jurisdiction to consider appellant's claim that a grant of immunity cannot supplant the Fifth Amendment privilege with respect to an individual who has a real and substantial fear of foreign prosecution. We have concluded, however, that it is unnecessary to reach the constitutional question in this case.

It is well...