*1 BAXTER PALMIGIANO al. et April Argued 1976* December 1975 Decided No. 74-1187. 74-1194, *Together with Enomoto, No. Director, Corrections et al. al., v. Clutchette et certiorari United States Court Appeals for the Ninth Circuit. *2 J., Court, opinion delivered the White, Burger, in which J., JJ., Stewart, C. and and Blackmun, Powell, Rehnquist, joined, JJ., in joined. Part which Brennan and Marshall, Y J., opinion concurring part dissenting filed an in in Brennan, J., post, part, p. Stevens, J., in joined, which 324. took Marshall, part in the consideration or decision of the cases. Dwight, Special Attorney Ronald A. Assistant Gen- petitioners Rhode for argued eral cause Island, C. 74^1187. With him on the brief Julius No. Michaelson, Attorney Dep- General. William D. Stein, Attorney uty argued of California, General cause petitioners him on the brief were No. 74M194. With Winkler, Attorney J. Jack Younger, Evelle R. General, O’Brien, Attorney Chief Edward Assistant P. General, Attorney Assistant Eric Collins and General, and W. Lenk, Deputy Morris Attorneys General.
Stephen for re Fortunato, argued J. cause Jr., spondent 74-1187. him the brief was No. With David Carliner. Turner argued William Bennett respondents cause for him 74-1194. on the No. With brief Thorne, Johnston, were John Lowell Jack Green- *3 † berg, Stanley A. S Fay and tender. Bass, Mr. opinion delivered the Justice White Court. present questions procedures required
These cases
as to
disciplinary hearings
of our
and as to the reach
McDonnell,
recent
decision
I A. No. 74-1194
Respondents penal of insti are inmates the California Quentin. tution They at San filed an action under seeking declaratory injunctive relief § S. C. 1983 and disciplinary and alleging procedures used in Quentin rights to due proceedings at San violated their process equal protection and of the laws under Four evi- teenth Amendment of the Constitution.1 After an Attorney Thornburgh, Bork, General Assistant General †Solicitor George Kopy Feit, Jerome M. and filed a brief for the United States as amicus curiae in both cases.
1 Respondents
Wesley
George
John
Clutchette and
L. Jackson
and,
brought
behalf,
pursuant
(b)
suit “on their own
to Rule 23
(1)
(b) (2)
Procedure,
and
Rule 23
the Federal Rules of Civil
on
granted substantial
dentiary hearing, the District Court
(ND
Procunier,
Supp.
F.
Clutchette v.
relief.
Ninth
1971).
Appeals
Cal.
The Court
Cir
longed granting rehearing of after of Court Appeals, intervening of our light conclusions reconsider its Wolff, judgment— reaffirmed its initial supra, decision prior modified its judge dissenting one again with —but respects. 2d 613 opinion in several F. minimum notice and a Appeals that
Court held with a respond due an faced even right are inmate an at a suspension privileges, that inmate temporary con privilege of hearing who is denied the cross-examining must writ fronting and witnesses receive ten reasons for such denial or the denial “will be deemed id., prima discretion,” facie evidence of abuse reaffirming an inmate its initial view—that and— might facing prison discipline for a violation that also be punishable in proceedings right state criminal has a (not just counsel-substitute) counsel hear ing. granted argu We certiorari and set the for case oral ment with No. 1010 (1975). 74-1187. U. S. B. No. 74-1187
Respondent Palmigiano is an inmate of the Rhode Island Adult serving Correctional Institution sen- life tence for by murder. He was charged correctional “inciting officers with disrupt a disturbance and [ion] [prison] which operations, might have resulted a riot.” App. (No. 74-1187). He was summoned before the prison Disciplinary Board and informed he might be prosecuted a violation law, of state that he attorney should consult his attorney his (although permitted Board to be present during hearing), had he during remain silent hearing if he but remained silent his silence would *5 against be held him. Respondent availed himself of the provided by counsel-substitute prison for rules and re- during hearing. Disciplinary- mained the The silent respondent “puni- Board’s decision was that be placed segregation” days tive for 30 and that his classification status downgraded be thereafter.
Respondent filed an § action under U. S. C. damages injunctive claiming dis- the relief, ciplinary hearing violated the Due Process Clause of the Fourteenth Amendment The Dis- of the Constitution.2
2The suggests United States as amicus curiae that No. 74-1187 properly is not before the Court because the the case involves constitutionality regulations of the Rhode Island Adult Correc Authority three-judge tions and hence should have been heard subject court, applicable regu to review appeal. here direct Authority brought lations of the when this case was had been promulgated negotiated as the result litigation of a settlement of the District Court for the District of Rhode Island. Morris v. Tra visono, Supp. they F. It is be conceded have law, they appear come state and it would are of statewide effect. face, however, The rules on their although regulating some detail required procedures prison hearings, disciplinary do ex pressly deny, grant mention, or or even to counsel where brought charges they sug are also crime under state do law. Nor gest, way other, one or whether an be inmate’s silence used against proceeding him in complaint itself. Palmigiano’s did not any challenge regulation mention or Authority; rule or did nor injunction any it seek an the enforcement of identified rule. it asked was that the Board’s What decision declared enjoined. Palmigiano invalid and its enforcement Neither nor the suggested three-judge State asked or that a It court be convened. appear validity would not that the District Court considered Authority’s rules to be at stake. That court ruled Palmigiano represented by counsel, was not entitled to be not be applicable cause the rules forbade it because it considered the but controlling rule under the relevant cases was this effect. The quite although Appeals, Court of aware attacks that constitutional might three-judge on the Rhode Island rules necessitate a Travisono, court, 1974), (CA1 F. 2d 1121-1122 see Souza jurisdiction evidently did not doubt its in this case. On the record us, provisions respect of 28 U. before S. C. 2281 with three- § judge appear applicable. courts would not to be *6 relief. evidentiary hearing and denied held an
trict Court
First
with one
Circuit,
for the
Appeals
The Court
“was
respondent
that
holding
dissenting,
judge
reversed,
hearing only inso-
process
disciplinary
in the
denied due
immunity for
with use
state-
provided
he
not
far as
disciplinary
made within
might have
ments he
access to retained
he was denied
and because
hearing,
(1973).
487 F. 2d
hearing.”
1280, 1292
within the
counsel
of the Court
judgment
vacated the
granted
We
certiorari,
for further con
remanded to that court
Appeals,
supra,
decided
light
McDonnell,
sideration
v.Wolff
(1974). On remand,
in the interim.
II In McDonnell, v. supra, comparisons drawing Wolff Gagnon Scarpelli, we said: (1973),
“The insertion of [prison] counsel into the disci- plinary process inevitably would give proceedings their adversary more and tend reduce cast goals. utility as a to further correctional means *7 prob- delay very practical There would also be and at in sufficient numbers providing lems counsel in to be held. hearings time and where are place the development proce- At of these this stage not that inmates have prepared dures we are hold or in appointed to either retained counsel disciplinary proceedings.” at 570. Arizona, Relying on Miranda v. U. S. States, (1966), United 1 (1968), and Mathis v. U. S. both Courts of cases that Appeals these held prison to representation inmates are entitled disciplinary the involve conduct hearings charges where punishable as not a crime under because state law, might the services that render connection with counsel disciplinary proceedings themselves, but because statements inmates would might hearings make at perhaps prosecutions used in be later state-court for the same conduct. Miranda, Mathis, supra,
Neither nor has supra, the question substantial whether counsel must bearing provided “[p]rison disciplinary hearings [which] part prosecution.” are not a criminal Mc- v. Wolff Donnell, supra, at 556. The Court has never and held, we decline to do so now, requirements those cases must be met pretrial to render statements admis- sible in other than criminal cases.
We see reason to alter recently our conclusion so made inmates do not “have a right Wolff either retained or appointed counsel in disciplinary hear- ings.” U. S., at 570. Plainly, therefore, state au- thorities failing were not error in Palmigiano to advise e., to the i. contrary, that he was entitled to counsel at and that hearing the State would furnish counsel if he did not one of have his own.
Ill required that he was advised Palmigiano he could re- hearing testify at his him. against be used his silence could main silent but that Circuit held that First Appeals Court of Amendment, of the Fifth privilege self-incrimination the Four- reason of to the applicable made States drawing inferences Amendment, forbids adverse teenth testify.. The from his failure to against an inmate this we sustain challenges State determination, challenge. Amendment has the Fifth held,
As the Court often being involun only protects the individual “not *8 tarily in criminal called as a witness himself prosecution privileges but also him not to official answer put him or questions any to civil other proceeding, or informal, might formal criminal, where answers him incriminate in future proceedings.” criminal Lefko witz v. 414 Turley, (1973). discipli S. Prison U. nary not are criminal if hearings proceedings; but inmates compelled are to proceedings those furnish testimonial might evidence that incriminate them in criminal later proceedings, they immunity must be offered “whatever is required supplant to privilege” may not required to immunity.” 85; “waive such Gar Id., rity v. New Jersey, 385 U. Gardner v. (1967); S. Broderick, 392 U. 273 (1968); S. Sanitation Men v. Sanitation Comm’r, 392 U. S. In this line Garrity cases from Lefkowitz, to pur the States, to suant to sought interrogate individuals about statute, job performance their or about their contractual rela tions with upon the State; insisted of the Fifth waiver Amendment privilege respond object or to later use of the incriminating statements in criminal prosecutions; upon refusal to automatically waive, and, contract employment eligibility or with terminated State could not constitu Holding the State. tionally compel testimony seek to not been that had immunized threats serious economic we reprisal, challenged invalidated the statutes. plainly
The Court has also ruled that it is constitu- tional error under the Fifth Amendment to instruct jury in a criminal case that it draw an inference guilt from testify a defendant's failure to facts about California, relevant to his case. Griffin (1965). This holding paralleled existing statutory id., policy of the United govern and the States, statutory ing overwhelming or constitutional rule majority the States. 8 Evidence 425-439 J. Wigmore, (McNaughton 1961). rev.
The Rhode Island prison rules do not transgress foregoing principles. proceedings No criminal are or were pending against Palmigiano. not, has State contrary to Griffin, sought to make his evidentiary use of silence at the disciplinary hearing pro- criminal ceeding. Neither has Rhode Island insisted or asked that Palmigiano waive his Fifth Amendment He privilege. was notified that privileged he was if remain silent he He chose. was also advised that his silence could be *9 against used but him, a prison inmate in Rhode Island electing to remain during silent his hearing, respondent Palmigiano as did is not in here, consequence of his automatically silence guilty found of the infrac- tion with which he has been charged. Under Rhode law, Island disciplinary decisions “must be based on substantial evidence manifested in record the the disciplinary proceeding.” Travisono, Morris v. F. 1970). Supp. 857, (RI It undisputed is thus an inmate's silence in and is of itself sup- insufficient to port an adverse decision by Disciplinary the Board. In from the cir- very different this case is respect,
this Garrity-Lefkowitz in the the Court before cumstances and to interrogation to to submit refusal where decisions, standing alone privilege, Amendment the Fifth waive resulted loss evidence, to other regard without the with the or to contract State. employment opportunity as respond interrogation to was treated to failure There, remained Here, Palmigiano guilt. a final admission of in- of evidence that hearing silent at the the face record his as far as this reveals, criminated him; and, evidentiary given no more value than silence was does by surrounding his case. This warranted facts by compel to attempt not smack of an invalid the State immunity or to testimony granting penalize without by given privilege. exercise of the The advice inmates reflection of the merely the decisionmakers is a realistic evidentiary choice to silent. significance remain his Palmigiano’s testimony
Had the desired over State Fifth Amendment but it objection, we can assume immunity would have use is re- extended whatever quired by Federal Constitution. Had this occurred Palmigiano had it nevertheless refused to answer, surely would not Fifth to have violated the Amendment draw whatever inference from his silence that the circum- stances privilege concerned, warranted. Insofar as the is the situation is little different where the State advises inmate of his to silence but him plainly also notifies that his weighed silence will the balance.
Our conclusion is consistent with the prevailing rule Fifth Amendment does not forbid adverse in- parties ferences against they civil actions when refuse testify response probative evidence offered them: the Amendment preclude "does not inference where the privilege claimed party a civil cause.” 8 J. Evidence 439 (McNaugh- Wigmore, *10 ton 1961). In rev. criminal where the stakes are cases,
319
convict,
the
sole interest
is to
higher and
State’s
Griffin
suggesting from
prohibits
judge
prosecutor
silence
substan-
it
as
jury treat
defendant’s
in state
guilt. Disciplinary proceedings
tive evidence
process
correctional
prisons, however,
involve the
crime.
important state
other than conviction for
interests
to this context.
We decline to
rule
extend
Griffin
adopted
It
important
position
is
to note here
by
Amend-
Appeals
the Court
is rooted
the Fifth
policies
ment and the
it serves.
It has little
which
improves
do
awith
fair trial and
rather than
derogates
from
the chances for
aside
Thus,
accurate decisions.
the Court
privilege against compelled self-incrimination,
consistently
proper
recognized
has
that in
circumstances
in the face of accusation is a relevant
fact
silence
barred from evidence
Adam
the Due Process Clause.
California,
son v.
ex
(1947);
The short of at his an inmate’s silence to be drawn from practice; an invalid and is on its proceedings face, not, it invalidating as record for there is basis applied Palmigiano.4 to here
IV McDonnell, inmate held that “the In we Wolff allowed to disciplinary proceedings should be facing call fact, it been natural to assert to assert a when would have failure it, of. the in effect to an assertion of the non-existence amounts (§ 1071 general principle is of evidence fact. This conceded as indicating person had infra). explanations, There be tenor; ‘prima facie’ truth no belief of that but conduct inconsistency. an
“There are several common classes cases: naturally legal “(1) proceedings what Omissions in to assert would have been asserted under the circumstances.
“(2) anything, speak to or to such detail Omissions assert with formerly elsewhere, positiveness, narrating, or when on the stand or the matter now dealt with.
“(3) all, to it Failure take the stand at when would have been natural do so. depends circumstances,
“In all of on the individual these much is, underlying it and in all of them the test would have been natural question?” person (Emphasis to make the assertion in (Footnotes original.) omitted.) Palmigiano provided The record in shows that No. 74-1187 copies Disciplinary Report superior's with of the Inmate and the investigation report, containing charges primary and evidence day against him, disciplinary hearing. on the before the At the hearing, Captain charge Palmigiano Baxter and sum read reports. reports, marized the two In the face of the he which seen, Palmigiano Disciplinary had elected to remain silent. The reports, Palmigiano’s Board’s decision was based these two hearing speak them, decision at the supplementary reports filing reports. made the officials the initial All documents were hearing introduced evidence before the App. (No. 74-1187). District Court in this case. 197-202 documentary in his de- present evidence witnesses unduly when him to do so will not permitting fense safety or goals.” hazardous to institutional correctional *12 566. noted “[o]rdinarily, We but present hearing; to evidence is basic to a fair right prison to from the right the unrestricted call witnesses population potential disruption carries obvious and in punishment for interference with the swift indi- carrying vidual cases be essential to out correc- of program tional the institution.” Ibid. The to right process rights call like other witnesses, due delineated Wolff, necessary thus circumscribed “mutual objec- accommodation between institutional needs and provisions tives and the of the Constitution that are of general application.” at 556. Id., Within the reason- able necessary limitations in the disciplinary con- we but did not text, require, suggested, disciplinary committee “state its reason for refusing to call whether it be for witness, lack of irrelevance, presented or the hazards necessity, individual cases.” Id., at 566.
We were careful distinguish between this limited to call process witnesses and other rights due disciplinary hearings. We noted expressly in com- that, parison to the right to call witnesses, “[confrontation present cross-examination greater hazards insti- tutional interests.” at 567. Id., We said:
“If confrontation and cross-examination of those furnishing against evidence the inmate were to be allowed as a matter of course, as in trials, criminal there would be potential considerable for havoc the prison inside walls. Proceedings would inevi- tably longer be to unmanageability.” tend Ibid. We therefore concluded that better course at this “[t]he period in a prison practices where time, are diverse and to the is to leave these matters experimental, somewhat Id., prisons.” of of state discretion the officials sound at 569. with of acknowledging strictures
Although Wolff the Court cross-examination, to confrontation and respect 74— rehearing in No. Circuit, for the Ninth on Appeals provide authorities to require prison went privilege to cross- denied the writing reasons inmates them in witnesses disci- examine or confront absent failure to set plinary proceedings; explanation, prevention to the one or more forth reasons related the four mentioned would expressly concerns Wolff prima deemed facie abuse discretion. *13 char
This conclusion is inconsistent with We Wolff. reasons “useful,” require, as but did not written acterized to denying right for inmates the limited call witnesses respect suggestion their made no such with defense. We to and as was which, confrontation cross-examination of pointed footing out, there stand on a different because danger adequate availability their inherent and the of at 567- S., bases of decision without them. See U. Mandating cross-examination, 568. confrontation and prison justify where officials can their denial except effectively grounds appeal judges, pre one or that to more left to the of empts the area that sound discretion Wolff prison officials.5 We add that on the record before us (unmodi Appeals held, opinion its Court of also initial respect rehearing point), fied in with to this that “the required finding committee be to make its fact must determinations solely upon presented hearing” the evidence at the in order based to confront and adverse witnesses cross-examine “[f]or meaningful.” 2d, at 820. Because F. we have held that general right there is no to confront and cross-examine adverse witnesses, it the Court Appeals’ holding follows of on this point rejected premise. must fall with its peculiar Due to the prison setting, of the it environment be that certain facts there is no of the of evidence abuse discretion prison state officials. y
Finally, Appeals the Court of Ninth Circuit in for the No. 74-1194 held minimum due as process —such opportunity for of rea notice, response, statement by prison necessary sons for action officials—was where deprived inmates were 510 F. at 615. privileges. 2d, Wolff; We did not reach the issue in we said: indeed, do procedures “We re suggest, however, quired by today’s decision for the deprivation good time would for required imposition also be of lesser penalties privileges.” such the loss of S., as at necessary 572 n. 19. Nor do we find it to reach the light issue now in of the record before us. None of the plaintiffs subject solely named No. 74-1194 was of privileges; brought loss all before disci were plinary hearings allegations type of “serious misconduct,” that we held in Wolff therein trigger procedures supra. outlined. n. 1, See record, such a we are Without unable consider the “liberty” degree privileges stake loss of thus procedural safeguards whether some sort due when are only *14 penalties” such “lesser are at stake. To the extent of Appeals that the Court required the Ninth Circuit in such procedures Ap- the Court of circumstances, disciplinary light relevant determination do not come to hearing. unduly until after the formal It would be restrictive require consideration, that such facts be excluded from inasmuch they may provide as respect valuable information with to the question may prison incident in and tailoring assist officials in penalties goals. to enhance correctional In so stating, however, we way holding diminish in in our that “there must be a Wolff by ‘written statement the factfinders as to the on evidence relied disciplinary S., and for the reasons’ action.” at 564. decision on the issue and its peals acted prematurely, cannot stand.6 “As of in McDonnell: the nature
We said Wolff in future process changes years, which may require then will further circumstances exist It is our reflection of this Court. consideration and required however, procedures that the we have now view, in prison disciplinary proceedings represent a reasonable accommodation between the interests of the and inmates 572. S., the needs the institution.” at We However, procedures do not from that view. retreat by in required Appeals Courts of 74-1187 and Nos. 74-1194 with are either inconsistent the “reasonable ac Wolff, premature or commodation” reached on the records us. judgments bases before in Nos. 74-1187 74-1194 accordingly and are
Reversed. part Mr. took no in the Justice Stevens consideration or decision of these cases.
Mr. Justice with whom Mr. Justice Mar- Brennan, shall part concurring dissenting part. joins,
I agree procedural safeguards that consideration of the necessary deprived only where an is of privileges inmate I premature this Part record, join and thus Y of the opinion, open Court's which leaves whether an inmate deprived privileges in the absence of due process safeguards. challenged holdings in No. 74-1194 Petitioners have not Appeals respect notice, for the Ninth
Court with Circuit 2d, to the or to be heard F. “neutral body, id., hearing detached” at 820. Cf. 418 U. Be 570-571. holdings issue, unnecessary longer cause these are no it is for us *15 to consider them. II
Parts and IV the opinion simply of Court’s reaffirm McDonnell, I S. continue Wolff procedural believe that approved safeguards Wolff short of minimum requirements of the Due Process I Clause, II and dissent from Parts and for the IV rea- by my sons stated Brother U. at 580. Marshall, III Part opinion, the Court’s confronts an however, present my issue not reaches view an Wolff1 acknowledges erroneous conclusion. The Court that in- mates have the privilege against to invoke compulsory prison disciplinary pro- self-incrimination in ante, “per- at but ceedings, nevertheless holds that mitting an adverse inference be drawn from an in- disciplinary proceedings mate’s silenee at his is not, practice,” proper its invalid ante, an and was face, in the circumstances of this case. This conclusion can- holding not be reconciled with numerous cases is barred from government penalizing an individual precedents require exercising privilege; for the hold- questions officials ask indi- ing government if an moot, intervening 74-1194 is agree 1 I not since the No. (Ferrell) plaintiff personal litiga in the outcome of has a stake this Indianapolis Jacobs, School Comm’rs v. tion. But the citation (1975), inapposite. held that case moot be We longer a plaintiffs personal cause the named had stake in the formally not outcome, and the action had been certified as class Id., not, however, at 129. did hold that such action. We without properly formal certification “the action is not a class action.” Ante, applies only moot at 311 n. 1. Jacobs to the determination of whether, example, ness, did deal with a court of as a action in the appeals treat an action class absence Moreover, propriety formal certification the district court. plaintiff addressed, is a of the certification not be since there need Miller, ante, personal in the Youakim v. with interest outcome. 236-237, 2.n. *16 326 happened incriminating information, as to elicit
vidual on that sanction any substantial imposition here, Fifth Amend- violates the silent individual for remaining inference reliance on prohibits principle ment. That in the context privilege from the exercise of the guilt disciplinary hearing. of a
I consistently recognized: As frequently we have privilege against self-incrim- “The constitutional interrelated facets: primary ination has two elicit may compulsion not self- Government use g., Counselman v. incriminating statements, see, e. Hitchcock, may 547; 142 U. and the Government S. of self-incrim- permit the use in a criminal trial g., by compulsion. See, e. inating statements elicited Haynes Washington, Murphy v. 373 U. 503.” v. S. Comm’n, 6 52, U. 57 (1964). S. n. Waterfront Indeed, only ago privilege pro- we said that “the weeks as well against tects compelled the use of statements as guarantees to remain silent im- right absent States, Garner United munity.” 424 U. v. S. 648, (emphasis supplied). Malloy Hogan, (1976) v. 1S. Fifth Amendment —the (1964), held/that mainstay” of system “essential our crimi- “American id., protects nal prosecution,” per- “the of a 7— son to remain speak silent unless he chooses unfettered exercise his own and to suffer no will, penalty for such Spevack ... silence.” 8. See Id., Klein, As The Chief Justice noted last Term: “This always broadly Court has con- strued Fifth protection to [the assure that Amendment] compelled an individual is not produce evidence which may against later be used him as an accused in a crim- inal action.” Maness v. Meyers, 419 U. S. protected by privilege “a (1975). Further, witness unless until he is rightfully refuse answer of his protected compelled at least use an- *17 any subsequent swers and evidence derived therefrom Kastigar criminal case in which he is a defendant. v. States, 441 (1972).” United 406 U. S. v. Lefkowitz 414 Turley, 70, (1973). Meyers, U. S. 78 See Maness v. supra, result). at 473 J., concurring (White,
Thus, only the Fifth Amendment from not excludes proceedings any use in criminal evidence obtained from the in violation of defendant the but also is privilege, operative proceedings before criminal are it instituted: government compulsion bars the from using to obtain incriminating person. Moreover, information from protected merely the encompass information “does not evidence which conviction, lead criminal but in- cludes information which would furnish link in prosecution chain evidence that could lead to .... States, v. United 341 U. 479, (1951).” Hoffman Meyers, Maness v. supra, necessary at 461. And it is not person guilty that a of criminal misconduct to invoke the privilege; an innocent person, perhaps fearing that revelation would of information tend connect him with a crime he did “ commit, protection. also has its privilege protect ‘The serves to the innocent who other- ” might wise be ensnared ambiguous circumstances.’ States, Grunewald v. United (1957), U. S. Education, quoting Slochower v. Board 350 U. S. 557-558 See E. The Fifth Amend- Griswold, Today ment 10-22 (1955); Consequences of Ratner, Exercising Privilege Against Self-Incrimination, IT. 472 (1957). Chi. L. Rev.
Accordingly, the fact that criminal proceedings were pending against ante, Palmigiano, at 317, does not answer the crucial question posed by this case. evidentiary lurked in proceeding in a criminal his statements use of for this case element significant background, but prohibits govern also Fifth Amendment informa to disclose compelling individual ment from an him with a crime. to connect might tend tion this up distinction Meyers, supra, pointed Maness v. availability suppress motions to recognition its remedy the Fifth do not compelled testimonial evidence S., at 460, 463. Amendment violation.
II in a aspect of that we relied on privilege It was this Garrity Jersey, New beginning with line cases *18 leading Turley, (1967), up U. and to v. Lefkowitz says very today The Court that “this case is supra. ante, my Garrity- different,” at but view the 318, authority drawing cases are compelling that Lefkowitz an inference from an exercise adverse inmate’s him privilege to convict of a offense violates the Fifth Amendment. Garrity policemen testify
In summoned to in the were police corruption. They course of an investigation they were that could claiffi the but would privilege, told Garrity if discharged they imposition did. held that of the choice job between self-incrimination and for- denied constitutionally required feiture the “free choice to to admit, or to refuse answer.” Lisenba v. deny, California, 314 (1947). Subsequent U. crimi S. 219, convictions nal were on therefore set the ground aside unconstitutionally that the compelled testimony should not have been in evidence admitted at trial.
In Spevack v. Klein, supra, day the decided same as Garrity, attorney an refused to a subpoena honor calling production for of certain records; financial the sole basis for the refusal was privilege against self-incrimina- He tion. was disbarred exercising and privilege, Court as infringing in this challenged disbarment was Hogan, v. on Relying Malloy Fifth Amendment. protects in- supra, Spevack privilege held that 8, any for their and that penalty dividuals silence protection which imposition any its bars “the sanction Fifth privilege makes assertion of the Amendment ” ‘costly.'’ California, at 515.2 See S., Griffin (1965). Spevack expressly U. S. stated that professional threat of disbarment and the loss “[t]he standing, professional livelihood reputation, and of are powerful compulsion,” forms of and held by inferring professional misconduct, therefore that penalizing solely that misconduct, the basis of an invocation of the State had violated privilege, Fifth Amendment. Broderick,
Gardner v.
2 quotation Although this is from plurality opinion the of four Justices, Portas, Mr. Justice who judgment, concurred in the "agree Spevack that could not [d] for asserting disbarred his privilege against self-incrimination,” S., U. pro thus viding majority proposition. a for that separately He wrote be cause he was of the employees view that enjoyed state a lesser protection. agreed He result, with the however, because Spevack— Palmigiano like employee. not a state Ibid. See Gardner v. — was Broderick, 392 U. S. on the turned decided the same day, U. (1968), ground.3 same recent decision Turley, the most supra,
Lefkowitz privi penalties exercising noneriminal for the involving testify to two lege, concerned architects summoned jury corruption of grand investigating charges before a They to waive the relating to state contracts. refused a such a privilege, provided state statute that would state existing refusal result cancellation of for for five ineligibility contracts and future contracts years. The architects that the brought claiming suit, self- privilege against compulsory statute violated the incrimination. The Court held in the absence that immunity compel the grant government give S., an individual incriminating answers. A 79.4 “substantial economic sanction” in the form loss of contracts was constitute com held sufficient to pulsion within the meaning of the Fifth Amendment. Id., at 82. The again imposed a noncriminal penalty, infringe was held to the Fifth context, Amendment. It jurisprudence today follows settled until has been it is constitutionally impermissible for gov- ernment impose penalties noncriminal as a means compelling individuals to Court forgo privilege. therefore begs question by “declin [ing] extend
3 In Sanitation Men employees 15 sanitation called before investigating alleged improprieties Sanitation Commissioner were privilege refusing told claim of the as a basis for to answer questions concerning their duties official would result in their dis charge. employees charges, Three answered and but denied juries grand immunity when later called before refused to waive doing discharged put so. The and were Court held that rights their employees to a choice between constitutional and their jobs compulsion privilege. that violated the at 284. Garrity accomplish specifi intended to what State has “[T]he *20 cally testimony prohibited compel that had not been immu —to nized.” 414 U. at 82. ante, at prison disciplinary proceedings, rule” to Griffin Appeals' holding of the of that 319. Affirmance Court Fifth by on inmate’s is reliance an silence barred Gardner, required by Amendment Sanitation Spevack, Men, Lefkowitz. attempted of plainly
The Court’s distinction those cases will not wash. To be refusal to waive the privilege sure, in imposition resulted automatic of some sanction all of those cases. Court reasons that because disci- plinary decisions must be based on substantial record Travisono, Morris v. evidence, Supp. 310 F.
(RI 1970),5 Palmigiano’s hearing silence “at the face evidence that incriminated him . . was . given evidentiary no more value than was warranted ante, the facts surrounding case,” his auto imposition matic of a sanction and therefore the results, use of such silence attempt “does not smack of an invalid by the compel testimony granting State to im without munity penalize toor the exercise of the privilege,” ibid. premise
But the Garrity-Lefkowitz line was not compulsion from the resulted automatic nature of but that a sanction, imposed sanction was made the exercise of the costly Plainly the privilege. penalty imposed days punitive Palmigiano seg —30 regation costly and a downgraded classification —made privilege exercise no less of govern than loss
5Although Morris imposes a substantial-evidence standard for appellate findings disciplinary review of proceedings, nothing in supports assumption that case the Court’s that an inmate’s silence evidentiary Ante, alone would not this 317; meet standard. cf. ante, at 313 n. provides 2. But if silence alone prem an evidentiary Garrity- discipline, ise sufficient for the Court’s distinction cases crumbles. I therefore opinion read the Court’s Lefkowitz imply the Fifth Amendment bars conviction solely violation based on an 74-1187, pe inmate’s silence. In No. silence, titioners more, concede that an inmate’s without would not be substantial evidence. *21 job. Even from a state discharge or
ment contracts con disciplinary assertion the Court's accepting follow from an inmate’s automatically does viction probative on silence as sanctioning reliance silence, allows the Court disciplinary charged, offense of the guilt privi costly the to exercise prison officials make pro condemned as Garrity-Lefkowitz something lege, For Amendment. it cannot by the Fifth hibited penalty imposed to disciplinary the was denied a sanction exercis solely,6 if not as extent, some Cali privilege. the constitutional See ing Griffin Jackson, 390 U. supra; United States v. fornia, plainly That violates the Fifth 581-582 Amendment. inconsequential
It is the is free to determine State probative Garrity- weight the to be attached to silence. probative did not consider and other value, Lefkowitz precedents deny power to any probative the State attach weight privi- whatever an individual’s exercise of the I lege, develop fully as more Part IY. notes, only evidence, Pahnigiano’s As the Court the other than
silence, Disciplinary before the Board consisted of reports written prison charges made officials filed the who initial Palmigiano. whole, inspires On the the record little confidence that his silence was not the sole basis for his conviction. At hearing official the disciplinary charges read Palmigiano then him: happened here, asked “What Nick?” request Palmigiano's response again was presence counsel, previously which had been denied. When renewed request denied, Palmigiano stated that he would remain silent on the you advice of counsel. The official thereafter asked: “Do questions intend to answer for the board?" Consistent with his statement, Palmigiano replied earlier that he did not. The Board ex hearing room; from cused him he was called back within five min utes and informed that he been guilty had found sentenced days’ punitive segregation, possible with a downgrade in his classification. obvious as compulsion upon Palmigiano as Garrity-Lefkowitz. individuals
compulsion upon *22 charges might brought He was told that criminal told he said against anything him. He was also disciplinary the be used him in hearing against could a criminal the proceeding.7 possibility self- Thus, just penalty incrimination was as real the threat a just as coercive. the Fifth Amendment does Moreover, not types of distinguish among degrees compulsion. “ ” v. United It prohibits sort.’ Bram any 'inducement of States, (1897). 168 U. S. “We have held inadmissible by even a confession secured mild whip so the refusal, as under certain to allow a circumstances, suspect to call Malloy his wife until he confessed.” Hogan, 378 U. at 7. Palmigiano was forced to choose between punitive self-incrimination and or segregation penalty. some similar Since the Court does not overrule Garrity-Lefkowitz the group of prece- those decisions, compel dents the conclusion that this imper- constituted compulsion. missible
Ill
The Court also
from
support
draws
the “prevailing
rule that
the Fifth Amendment does not forbid adverse
parties
inferences against
to civil actions
they
when
re-
respect
In this
it is not clear
requirements
that all of the Morris
were
in Palmigiano’s disciplinary
observed
hearing. Under the
prison's rules, each inmate must be advised that “statements he
makes in his
defense
hearing
probably
are
by
admissible for
prosecution
affirmative use
at a trial.” Brief
for
74-1187, pp.
Petitioners in
Palmigiano,
No.
however,
4-5.
anything
told that
he said
against
could be used
him at a criminal
event,
trial.
In
required
warning
uncertain
hardly satisfy
rules
requirements.
would
constitutional
See n.
respect,
In this
holding
prisoner
Court's
that the
has infra.
right to
difficulty,
surely
counsel exacerbates the
the advice of
counsel is essential in
complex
this
Meyers,
area. See Maness v.
(1975).
fuse Ante, may prevail, That rule at 318. them.” today. until Court approval of this not have but it did an permitting suggested commentators have Some Fifth civil cases violates some adverse inference Litigant Civil Penalizing the Amendment. Comment, Against Self-Incrimination, Privilege Who Invokes the (1972); Comment, Fla. L. Rev. 541, 75; Privilege Against Self- F. Use Ill. Note, L. in Civil 52 Va. Rev. Incrimination L. Litigation, I an infer- would have such difficulty holding only impermissible involving private ence in civil cases I parties. compulsion violating But would hold *23 privilege present criminal or proceeding, civil, government a an puts questions indi- where official knowledge might vidual with the the answers tend States, incriminate him. See Garner United 424 v. Comm’r, Sanitation Men Sanitation 655-656; S., v. at 284. by a Such distinction is mandated one of the funda- purposes preserve mental of the Fifth Amendment: system adversary justice our of by preventing criminal government the from system by circumventing supra, Garner v. United States, abusing powers. its Only few sys- 655-656. weeks ago, we said: “That tem is government undermined when a deliberately seeks to avoid the independent by burdens of investigation compelling self-incriminating disclosures.” Ibid. important of
“One the most privi- functions lege protect is to all suspected whether persons, crime or from not, abuse government of its powers of investigation, punish- trial and arrest, ment. It was not solicitude for persons accused of crime but the desire to proper maintain the balance government between persons and the governed that pro- of these constitutional gave adoption rise to the Exercising Consequences visions.” Ratner, L. U. Chi. Privilege Against Self-Incrimination, (footnote omitted). 484 (1957) Rev. private party
In civil involving only suit parties, powers govern- to the battle the awesome of the brings to be ment, permit and therefore to an adverse inference from not implicate drawn of the does privilege exercise policy privilege. considerations But underlying where the government “deliberately seeks” answers to incriminatory it from allowing to benefit questions, the exercise of indeed privilege gov- aids, encourages, adversary system. ernmental circumvention of our In contrast, an judgment affirmance Palmigiano’s case would further of the government obedience to the United commands the Fifth Amendment. States Cf. Karathanos, (CA2 1976) F. 2d J., (Oakes, concurring); Perspectives on the Fourth Amsterdam, Minn. L. Amendment, Rev.
Nothing in this record suggests that the State does procedure use the as a means to gather prosecutions. evidence criminal On the contrary, was told that he Palmigiano might be which prosecuted, *24 indicates that criminal brought are in proceedings some And if instances. the State does not intend to initiate criminal proceedings, the Fifth Amendment problem can readily be by avoided simply granting immunity any for testimony at given disciplinary hearings.8
8Although my only view is that immunity transactional can remove the self-incrimination problem, Piccirillo York, New v. 400 548, (1971) U. S. (Brennan, 562 J., dissenting), that view is not g., presently See, e. Turley, law. v. 414 70, 84 Lefkowitz (1973); Kastigar States, v. United 406 U. S. 441 Although prison Rhode Island officials are by not authorized grant my statute to immunity, White has Brother suggested that 336
IY of the Court judgment affirm I therefore would that court held that insofar as in 74-1187 Appeals No. him a used may not be silence an inmate's un- make would proceeding. This prison of the exercise question whether necessary addressing the of guilt. evidence may probative treated as privilege be that invocation indicates Since Court, however, ante, probative circumstances, is in these privilege disagreement. I For have my we 319, express at such an inference has repeatedly emphasized very by relied upon foundation. cases Indeed, expose support Court its the conclusion that error probative. could not treated as Palmigiano’s silence be Tod, Bilokumsky rel. United States ex U. S. ante, at (1923), quoted deportation pro a involved deportee deny ceeding in which the failed that he was an But he attempt prove alien. also failed claim or that he was a citizen. was not an Alienage element any probative and his silence held of his crime, persuade judge a witness who fails to prospective that a answer incriminatory protected constitutionally “is nevertheless imposed immunity he response' [judge’s] use if answers to the order under contempt.” Meyers, threat of Maness v. (concurring result). Vincent, See Fowler v. 366 F. Supp. 1224, (SDNY 1973); Wainwright, Sands v. Supp. F. 1973). (MD Although Fla. an inmate would not be testifying response order, to a court his response answers in questions officials are compelled nevertheless within the meaning of the Fifth Amendment. immunity there Thus, would statements, given. must, however, inmate be informed immunity. of the existence my As said, Brother White “a required question witness not be to answer a if there is some believing rational basis for it will him, incriminate least being without at time assured that neither it nor its fruits *25 against be used him.” Meyers, Maness supra, (em- v. phasis original). since permissible plainly was alienage. inference deportee possibility incrimination, faced But implication privilege. there therefore no was predicament ques answers to Palmigiano's was that could connect put tions to him officials him with a crime. from United part
The Court also quotes a sentence Hale, States We said in Hale 171 (1975). U. S. most silence is ambiguous circumstances so “[i]n Id., it probative is of little force.” 176. We also noted that its probative force increases where person likely dispute “would be than to more Ibid. We an untrue emphasized accusation.” “[fjailure to contest an is consid- assertion, however, of acquiescence only ered evidence if it would have been object natural under the circumstances Ibid, question.” assertion in (emphasis supplied). That was not the case since Hale's in response silence was notice that he had a to remain right and that silent, statements he would be made used him in against court. excerpts These from Hale require the conclusion that Palmigiano’s no probative silence also had force.. Palmi- giano was also advised that he had a remain silent, that he might and that anything prosecuted, he said could be used him in court. Grunewald States, v. United
Finally, (1957), particularly persuasive authority that Palmi- giano’s silence is not probative. We there considered whether Halperin’s one exercise of the privilege was probative of and we concluded that his guilt, silence, circumstances, “wholly consistent with inno- Id., cence.” at 421. “Halperin repeatedly insisted . . . that he was innocent pleaded and that he his Fifth Amendment privilege solely on the advice of counsel.” Id., at 422. Similarly, Palmigiano here maintained that he was innocent and that he claimed the privilege on
338 where was a situation Grünewald counsel. advice of a grand made before claim was Fifth Amendment
“the not a volun- and compelled, was a Halperin jury where by counsel; represented not he was witness; where tary, no where he had witnesses; and summon he could where testifying to cross-examine witnesses opportunity to Palmigiano’s Ibid. That was similar him.” only very right limited to call inmates have situation; of cross-exami- even more limited and an witnesses, ante, per- Grünewald is most at 321-322. thus nation, authority Palmigiano’s pro- silence was not suasive Mullen, (CA1), Flint 499 2d 103 100, v. F. bative. See (1974).9 419 S. 1026 denied, cert. U. probative silence force in these cases over-
To accord
“that one of the basic func-
teaching
looks the hornbook
innocent
privilege
protect
tions of the
men.”
States,
(emphasis
Grunewald
United
at 421
supra,
v.
insensitivity
If
this Court’s
to the Fifth
original).
9
support
The other cases cited
do not
Court likewise
Palmigiano’s
probative
holding that
silence should have
force. No
Gastelum-Quinones
problem
presented
self-incrimination
v.
Kennedy,
(1963).
deportation
469
That
S.
case involved a
subject
proceeding,
proceeding
silent,
and the
of that
but
remained
Moreover,
not for Fifth Amendment reasons.
the Court held that
“deportation is a drastic
premised
sanction”
“must therefore be
upon
directly probative
evidence
.
. more
.
than a mere inference
upon
Id.,
based
the alien’s silence.”
at 479.
par
We held that
deportation
ticular
not
Id.,
order
based
substantial evidence.
Similarly,
480.
Court did not address
self-incrimination is
sue
California,
relevant to the instant case in Adamson v.
332 U. S.
Twining
(1947),
46
New Jersey,
(1908).
v.
The fact hi the the cases this case from distinguish of course, not shed prisoner does Garrity-Lefkowitz "a line, since prison gate.” at the rights constitutional his basic Wolff McDonnell, dissent- atS., v. J., (Marshall, (CA8 404 F. 2d Bishop, ing) see Jackson ; today’s I must therefore view 1968) J.). (Blackmun, disregard Justice regrettable as another Mr. decision interpretation that our Frankfurter’s admonition purpose privilege Founding is not faithful to the Fathers’ history: it teaching when does reflect the regis- . “This command of the Fifth Amendment . . *28 important development ters an in the advance liberty great our in man’s landmarks —'one struggle to civilized.’ Time make himself has protection shown from the evils which this safeguard was directed is needless or unwar- protection ranted. This constitutional must not be interpreted in a or niggardly spirit. hostile Too many, even those who should be better advised, view this privilege as shelter for wrongdoers. They readily too assume that those who invoke it either guilty are crime or perjury commit claiming the privilege. view Such a does scant honor to patriots sponsored who the Bill of Rights as a condition to acceptance of the Consti- tution by the ratifying States.” Ullmann v. United States, 350 U. S. 426-427 (1956) (footnotes omitted).