Brown v. StateBrown v. State
- Reporters:
- , ,
- Before:
- Brune
delivered the opinion of the Court.
This is an appeal from a judgment of the Circuit Court for Anne Arundel County finding the appellant, James Dawson Brown, guilty of contempt by reason of his refusal to obey an order of that court to answer before the Grand Jury for Anne Arundel County certain questions which had been propounded to him before that body, and fining him $500.00 and sentencing him to jail until he should purge himself of contempt by answering the questions. He was released on bail pending this appeal.
The questions which the appellant refused to answer were
Article 22 of the Maryland Declaration of Rights reads as follows:
“That no man ought to be compelled to give evidence against himself in a criminal case.”
It is very similar in language to the corresponding clause of the Fifth Amendment to the Constitution of the United States providing that
“No person * * * shall be compelled in any criminal case to be a witness against himself.”
The appellant relies on cases decided under the Fifth Amendment and urges that its interpretation should control the interpretation of Article 22 of the Declaration of Rights, but he
Section 50 of Article 3 of the Constitution of Maryland of 1867 provides in part:
“It shall be the duty of the General Assembly * * * to provide by Raw for the punishment * * * of any person, who shall bribe, or attempt to bribe, any Executive, or Judicial officer of the State of Maryland, or any member, or officer of the General Assembly of the State of Maryland * * *; and also to provide by law for the punishment, * * * of any of said officers, * * * who shall demand or receive any bribe, * * *; and, also, to provide by law for compelling any person, so bribing or attempting to bribe, or so demanding, or receiving a bribe, fee, reward, or testimonial, to testify against any person, or persons, who may have committed any of said offenses; provided, that any person, so compelled to testify, shall be exempted from trial or punishment for the offense, of which he may have been guilty.”
Section 23 of Article 27 of the Code (1957) enacted in compliance with the above requirements provides for the punishment of any person bribing or attempting to bribe public officers, including any judge, justice of the peace or other judicial officer of the State, and of any such officer demanding or accepting a bribe, fee, reward, or testimonial for the purpose of influencing his performance of his official duties or of neglecting or failing to perform the same. It then continues:
“[A]ny person so bribing or attempting to bribe or so demanding or receiving a bribe shall be a competent witness, and compellable to testify against any person or persons who may have committed any of the aforesaid offenses; provided, that any person so compelled to testify on behalf of the State in any such case shall be exempt from prosecution, trial, and punishment for any such crime of which such person so testifying may have been guilty or a participant therein and about which he was so compelled to testify.”
“No person shall refuse to testify concerning the crime of conspiring to commit any of the offenses set forth in § 23 of this article, * * *, and any person shall be a competent witness and compellable to testify against any person or persons who may have conspired to commit any of the aforesaid offenses, provided that any person so compelled to testify in behalf of the State in any such case, shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses of which such person so testifying may have been guilty or a participant or conspirator therein and about which he was so compelled to testify.”
The State contends with considerable force that Section 50 of Article 3 of the Constitution and Section 23 of Article 27 of
Other states having constitutional immunity provisions similar to ours have held that they limit the constitutional privilege against self-incrimination. See State v. Rodrigues, 219 La. 217, 52 So. 2d 756; State v. Dominguez, 228 La. 284, 82 So. 2d 12; Commonwealth v. Bell, 145 Pa. 374, 389, 22 Atl. 641; Commonwealth v. Cameron, 229 Pa. 592, 79 A. 169; Commonwealth v. Haines, 171 Pa. Super. 362, 90 A. 2d 842; Maguire, Evidence of Guilt, 70 n. 13. It may be noted, however, that the Louisiana constitutional immunity provision involved in the Rodrigues and Dominguez cases is in terms self-executing and does more than establish a duty in the legislature to implement it. In addition, the self-incrimination provision of the Louisiana constitution, unlike Section 22 of our Declaration of Rights, contains the phrase “except as otherwise provided in this constitution.” The self-incrimination provision of the Pennsylvania constitution is likewise self-executing, and it does not contain a clause relating to exceptions.
Such a view also finds some support in the debates on the constitutional provision here involved. See Perlman,
Debates of the Maryland Constitutional Convention, of 1867,
p. 286. One objection made to Section 50 of Article 3 was “that it violated the principle of the Declaration of Rights, which declares that
We think that Section 23 of Article 27 of the Code (1957) undertakes to give in full the immunity contemplated by Section 50 of Article 3 of the Constitution, and in terms is somewhat broader, but is not beyond the constitutional authorization. We might rest our opinion on the ground that this statutory provision founded upon the constitutional mandate (as in Anderson v. Baker, supra) limits the scope of Article 22 of the Declaration of Rights, if there were any conflict between them.
We think, however, that there is no real conflict between Article 22 of the Declaration of Rights and the statutory immunity here granted. The general rule (apart from a constitutional provision, whether self-executing or implemented by statute, which in terms or by implication limits the privilege against self-incrimination) is that in order to be valid, the immunity granted must be as broad as the privilege against self-incrimination which it supplants or displaces.
Our Article 22 is in pari materia with the provisions of the Fifth Amendment to the Federal Constitution against self-incrimination, and it should, we think, receive a like construction. Adams v. State, 202 Md. 455, 460, 97 A. 2d 281, reversed on another ground, 347 U. S. 179; Bass v. State, 182 Md. 496, 500, 35 A. 2d 155; Blum v. State, 94 Md. 375, 382, 51 Atl. 26. 3
Historically, at least,
Counselman v. Hitchcock,
142 U. S. 547, is the foundation of the general rule as to immunity statutes above stated, although in that case the particular Act involved was held not to grant a sufficiently broad immunity. In
Brown v. Walker,
161 U. S. 591, the statute before the Su
In our opinion an immunity statute, in order to be valid, need not be couched in precisely the same terms as that suggested in
Counselman
and upheld in
Brown v. Walker, supra,
if its effect is to grant protection as broad as that afforded by the privilege which it displaces. We think that such protection is afforded by the immunity granted by Section 23 of Article 27 of the Code (1957). The immunity thereby granted to the witness compelled to testify from “prosecution, trial, and punishment for any such crime of which such person so testifying may have been guilty or a participant therein and about which he was so compelled to testify” is a broad immunity. Since it bars “prosecution,” it effectively bars the use of “leads” to convict the witness of the offense as to which he testifies, and it covers the offense of attempting to bribe as well as actual bribing. We further think that the broad language referring to “any
Brown v. Walker, supra, relies on a number of early state court cases upholding the validity of immunity statutes worded more narrowly than the statute here in suit. Reference was there made to cases upholding statutes limiting immunity from prosecution to “any offence committed at the time and place indicated”, Kendrick v. Commonwealth, 78 Va. 490, or limiting immunity from prosecution to “the offense with reference to which testimony was given,” Ex Parte Cohen, 104 Cal. 524, or to “that bribery” testified to by the witness. People v. Sharp, 107 N. Y. 427. See Brown v. Walker, 161 U. S. at pp. 602-05.
Nor do subsequent Supreme Court decisions establish a total amnesty rule. The reference to “full and complete immunity against prosecution” in United States v. Murdock, 284 U. S. 141, should, we think, be read in the context of the earlier cases cited. The same may be said of the dictum in United States v. Bryan, 339 U. S. 323, 336. In Ullmann v. United States, 350 U. S. 422, 437, the court observed that the Counselman statute had been invalidated because “it merely forbade the use of the testimony given and failed to protect a witness from future prosecution based on knowledge and sources of information obtained from the compelled testimony. It was with this background that the 1893 statute, providing complete immunity from prosecution, was passed and that Brown v. Walker was argued and decided.” (Emphasis added). See also United States v. Monia, 317 U. S. 424, 428. We think the references to a requirement of absolute immunity in this and other cases refer to immunity from prosecution as opposed to immunity merely from the later use as evidence of recorded testimony, and that as to the range of offenses, they do not require a greater protection than that the statute must bar prosecution for all offenses with regard to which the testimony of a witness may be compelled. As to other offenses, we think, the privilege is neither impaired nor supplanted.
Numerous state cases arising after
Counselman
and
Brown
We find no merit in the appellant’s contention that his answers to questions would expose him to prosecution for “unrelated crimes.” The appellant does not specify the character of these unrelated crimes and we think that our holding that the statute immunizes him from prosecution for conspiracy to bribe as well as bribery and attempted bribery supplies him with all the safeguards to which he is entitled. “[T]he constitutional protection is confined to real danger and does not extend to remote possibilities out of the ordinary course of law. Brown v. Walker, 161 U. S. 591, 599, 600.” Heike v. United States, 227 U. S. 131, 144 (Holmes, J.). “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.” Mason v. United States, 244 U. S. 362, 364, see also The Queen v. Boyes, 1 B. & S. 311, 329, 330.
The appellant does not claim that the failure of the immunity statute to protect against prosecution for federal offenses renders it defective. Such a claim would have no basis under present law.
Knapp v. Schweitzer,
357 U. S. 371;
Feldman v. United States,
322 U. S. 487. Moreover, even if failure
We also find the appellant’s claim that he was not obliged to give testimony at grand jury proceedings not to be sustainable. The statute provides that a person involved in the bribery “shall be a competent witness, and compellable to testify against any person or persons who may have committed any of the aforesaid offenses, * * * provided, that any person so compelled to testify in behalf of the State in any such case shall be exempt from prosecution. * * Code (1957), Article 27, Section 23. The statute contains no limiting phrases, unless “in any such case” is to be read as such. We think that it is not.
McCormick,
Evidence,
§ 123, states: “Despite the language of the Federal Fifth Amendment and many similar state provisions, purporting to limit the protection to criminal cases, it is clear that the privilege of a witness not to answer incriminating questions extends to all judicial or official hearings, investigations or inquiries where persons are called upon formally to give testimony. A witness has this protection accordingly in a * * * civil or criminal case,’ or in * * * an investigation or hearing by a grand jury * * See
Counselman v. Hitchcock, supra,
and
United States v. Monia, supra.
In the latter case (317 U. S. at 427), Mr. Justice Roberts, writing the majority opinion and citing
Counselman,
stated flatly: “An investigation by a grand jury is a criminal case.” The applicability of the privilege against self-incrimination to a witness testifying before a grand jury was recognized by our predecessors in
Gamble v. State,
164 Md. 50, 163 A. 859. In that case, in speaking of the appearance of the appellants-defendants before the grand jury this Court said (164 Md. at 52): “If they had thought they were in any danger of indict
To avoid possible difficulty in the future, we think it advisable to comment upon a statement in Gamble (164 Md. at 53) to the effect that a grand jury investigation is not a “case” within the meaning of the Fifth Amendment to the Federal Constitution. This statement was not, in our view, necessary to the actual decision of the Gamble case, 4 and it was not, in our judgment, a correct statement of the law with regard to grand jury proceedings in the light of the views of the Supreme Court expressed in Counselman (1893) above referred to, which were, as we have also pointed out, subsequently reaffirmed in Monia (1943). The precise significance of this statement is not clear to us; but if it means, as we think it does, that the privilege against self-incrimination “in a criminal case” does not apply in grand jury proceedings, it seems irreconcilable with the very positive statement in the same opinion which we have quoted above that the appellants could have availed themselves of the privilege before the grand jury.
The principal actual holding of
Gamble
was that the fact that the defendants had testified before the grand jury which subsequently indicted them, without asserting their privilege against self-incrimination, did not invalidate the indictment. This holding was in accord with
Pick v. State,
143 Md. 192,
The appellant also-asserts that even if immunity might be held to extend to grand jury proceedings under most state statutes, the plenary inquisitorial powers of Maryland grand juries, as established in such cases as Blaney v. State, 74 Md. 153, 21 Atl. 547, dictate a different result here since, as he puts it, “The Grand Jury upon its own volition despite the promises of immunity by the State * * * [might] indict for the same matters for which the State claims to grant immunity.” We may note that the possession of plenary powers by grand juries is not unique to Maryland; it is significant that the Supreme Court in holding an immunity statute applicable to grand jury proceedings in Hale v. Henkel, 201 U. S. 43, 66-67, made reference (at p. 63) to Blaney v. State, supra. See 201 U. S. at 63. Moreover, the short answer to appellant’s fear of the grand jury was supplied in Brown v. Walker (161 U. S. at p. 608): “The same, answer may be made to the suggestion that the-’witness is imperfectly protected by reason of the fact that he may still‘be prosecuted and put to the annoyance and expense of pleading his immunity by way of confession and avoidance. This is a detriment which the law does not recognize. There is a possibility that any citizen, however innocent, may be subjected to a civil or criminal prosecution, and put to the expense of defending himself, but unless such prosecution be malicious, he is remediless, except’ so fat aá‘a recovery of costs may partially indemnify him.”
Judgment, affirmed, costs to be paid by the appellant.
Notes
. At the last of three hearings in the trial court, he spoke of his privilege under the Fifth Amendment — meaning, doubtless, to the Constitution of the United States — but, as we later point out, he does not now assert any claim of violation of rights under that Amendment.
. There are a number of other statutes in this State dealing with .the compellability of testimony with regard to offenses and the grant of immunity to persons compelled to testify. The language is not uniform. Thus Code 1957, Article 27, § 540 (prevention of sabotage); Article 48 A, § 359 (infractions of the insurance laws); and Article 95A, § 12 (j) (unemployment insurance law), use the “transaction, matter or thing” language of the immunity statute upheld in Brown v. Walker, 161 U. S. 591. Code (1957), Article 101, § 8 (workmen’s compensation law) refers even more broadly to “any act, transaction, matter or thing.” On the other hand, Article 27, §§ 262 and, 371 (gaming and lotteries), refer, in language similar to that of the statute in suit, to prosecutions for “any and all such” offenses. Article 27, § 400 (sale of liquor to minors), refers to offenses “under this section.” Article 27, § 24 (bribery in connection with athletic contests), limits immunity to prosecutions for “the crime”, while Article 81, § 359 (retail sales tax act) does not bar subsequent prosecutions at all, but forbids only the “use” of compelled testimony in “any subsequent prosecutions.” Article 75, § 74, and Rule 628 (supplementary proceedings) refer to prosecutions “based upon such fraud.”
. The Fifth Amendment has not heretofore been held binding upon the States through the Fourteenth Amendment. Twining v. New Jersey, 311 U. S. 78; Adamson v. California, 332 U. S. 46. We note, however, that certiorari has been granted, 373 U. S. 948, to review Malloy v. Hogan, 150 Conn. 220, 187 A. 2d 744, which involves this matter.
. We also note that this statement was made in reply to a contention of the appellants based on the Fifth Amendment. The opinion does not contain any discussion of the applicability of the Fifth Amendment. See note 3, supra.