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Federalism v. Individual Rights: The Legal Squeeze on Self-Incrimination
Published online by Cambridge University Press: 01 August 2014
Extract
This study deals with one reputed value of federalism, its service in the cause of freedom or liberty (both terms are used interchangeably here to mean an immunity from arbitrary governmental action). In particular, I shall examine one aspect of that sort of freedom in our federal system, namely, the right against self-incrimination. The general case for the peculiar virtue of our constitutional system as a means of assuring such a right was summarized by Madison:
In the compound republic of America the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself.
Passing over argument about the contribution of the separation of powers and judicial review, our attention will center on the complexities introduced by the federal division of powers. William Anderson posed the broad question some years ago: “Does federalism imply not only a division of powers between national and state government, but also a subtraction of powers from both in favor of the individual? Will there be less government in a federal than in a unitary state, or possibly even more?” And we might add—what his formulation leaves partly open—if more government, then necessarily less freedom? More explicitly, Franz Neumann has suggested recently that “whether the federal state does increase freedom cannot be abstractly determined. We have some evidence that the federal state as such (that is regardless of the form of government) has not fulfilled this role.”
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- Copyright © American Political Science Association 1960
References
1 The Federalist, No. 51.
2 Anderson, William, Federalism and Intergovernmental Relations (Chicago: Public Administration Service, 1946), p. 33.Google Scholar
3 Neumann, Franz L., “Federalism and Freedom: A Critique,” in Macmahon, A. W. (ed.), Federalism Mature and Emergent (Garden City, N. Y., 1955), p. 47.Google Scholar
4 Ibid., p. 48. His argument ran counter to the tenor of other essays in the symposium.
5 McNabb v. United States, 318 U. S. 332, 347 (1943).
6 The leading cases are United States v. Saline Bank of Virginia, 1 Pet. (U. S.) 100 (1828) and Ballmann v. Fagin, 200 U. S. 186 (1905). For an excellent historical analysis see Grant, J. A. C., “Federalism and Self-Incrimination,” U.C.L.A. Law Rev., Vol. 4 (June, 1957), pp. 550 ff.Google Scholar
7 The American decisions taking this viewpoint include Brown v. Walker, 161 U. S. 591 (1896) and Hale v. Henkel, 201 U. S. 43 (1905). The English decisions most often cited are King of the Two Sicilies v. Willcox, 61 Eng. Rep. 116 (1851) and Crown v. Boyes, 121 Eng. Rep. 730 (1861). Actually the latter decision did not even involve a second sovereignty: the issue in the case was whether the testimony of a witness implicated in alleged vote-buying in a Parliamentary election could legally be compelled to answer when a Crown Pardon could not protect him against the highly remote possibility of an impeachment action by the House of Commons. Yet once the case was incorrectly cited, it continued to be con sidered as authority for the two sovereignties rule. See infra, note 42, for a further criticism of the use of English and Empire cases as precedents for the self-incrimination issue faced by American courts.
8 284 U. S. 141.
9 102 Fed. Supp. 597 (N.D. Ohio, 1952). Two companion cases, United States v. Licavoli and United States v. Aiuppa, ibid., 607 and 609, also applied the same reasoning to similar fact situations.
10 The Committee was investigating local crime conditions in order to determine whether the facilities of interstate commerce were being used to aid local violations.
11 The usual wording is that “no witness shall be prosecuted or be subjected to any penalty or forfeiture on account of any transaction, matter or thing concerning which he is so compelled.” See 18 U.S.C. (1958) sec. 3486 for a recent example. The first immunity statute was passed in 1857, 11 U. S Slat. 155. For an excellent summary of their evolution see H. Rept. No. 2606 on S. 16, in U. S. Code Congressional and Administrative News, 83d Cong., 2d sess., 1954, pt. 2, pp. 3062 ff.
12 142 U. S. 547 (1892). The Supreme Court there ruled that a witness need not testify even though he is offered the protection of a “partial” immunity statute because the compelled information, while not itself admissible as evidence against him, may be utilized to gain other incriminating facts. The Court reasoned that in such a situation a “partial” immunity is not an adequate substitute for the constitutional privilege. In a subsequent decision, Brown v. Walker, cited supra, the Court upheld the testimony-compelling features of a “complete” immunity statute on the ground that the protection it affords the witness is coextensive with his constitutional right.
13 In the course of legislative investigations into subversive and treasonous activities which endanger national security and defense, Congress, or any of its committees, may petition the United States District Court for an order compelling the witness to answer; the United States District Attorney is given similar authority in judicial inquiries into these matters before both grand and petit juries. 18 U.S.C. (1958), sec. 3486. A similar statute applies to judicial proceedings pertaining to narcotics violations. 18 U.S.C. (1958), sec. 1406. The authority of certain regulatory agencies—the ICC, FPC, etc.—to compel testimony by the use of “complete” immunity statutes has been granted on a statute-by-statute basis. For a list of such statutes see Shapiro v. United States, 335 U. S. 1, 6, n. 4 (1948).
14 Brown v. Walker, cited supra. However, the language on this point must be considered as dictum, only since there was nothing in the facts surrounding that case to indicate that any real question of state prosecution was present, and the Court indicated that it considered the danger of any such future prosecution as exceedingly remote. Moreover, the Court also seemed to adopt the position that in any event such an eventuality was irrelevant under the “separate sovereignties” rationale. See note 7 supra.
15 347 U.S. 179 (1954).
16 12 Stat. 333 (1862). This statute was repealed in 1954 when the present complete immunity law dealing with testimony affecting the national security and defense was enacted. See note 13, supra.
17 350 U.S. 422 (1956).
18 In Tedesco v. United States, 255 F.(2d) 35 (6th Cir., 1958), a federal Circuit Court sidestepped the issue by holding that the portion of the federal narcotics statute which purported to give this “complete” protection from state prosecution was separable from its remaining provisions, and only the latter had to be validated in order to deal with the essential questions raised by the case. However, the Court expressed its doubts that this power exists in a field, such as narcotics, of concurrent governmental powers.
19 68 Fla. 433, 67 So. 135 (1914).
20 193 Mich. 17, 1959 N.W. 299 (1916). Both courts interpreted provisions of the national bankruptcy act stipulating that elicited testimony could not be used in “any criminal proceeding” as applying to state, as well as federal courts. But the Florida Court also held that the use of such evidence would violate provisions of the State Constitution pertaining to self-incrimination.
21 75 So.(2d) 211 (Sup. Ct. Fla., 1954).
22 See infra, p. 896 ff, for a further discussion on this matter.
23 211 U.S. 78 (1908). This doctrine was affirmed more recently in Adamson v. California, 332 U.S. 46 (1947).
24 See Wigmore, John, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (3d ed., Boston, 1945), VIII, sec. 2252Google Scholar, for a list of the pertinent constitutional provisions and cases.
25 For a list of these immunity statutes, see Wigmore, ibid., sec. 2281.
26 199 U.S. 372 (1905). The Court emphasized the remoteness of the danger of federal prosecution; however, it also indicated that the legal immunity granted the witness need only apply to a prosecution in the same jurisdiction. Ibid., p. 382.
27 For examples of recent decisions taking this line see Cabot v. Corcoran, 332 Mass. 44, 123 N.E.(2d) 221 (1954); State v. Arnold, 124 N.E. (2d) 473 (Sup. Ct. Ohio, 1954), and Wyman v. DeGregory, 101 N.H. 171, 137 At(2d) 512 (1957).
28 318 Mich. 645, 29 N.W.(2d) 284 (1947). Actually the test had been formulated in earlier decisions, but did not apply to the defendants concerned. See In re Watson, 293 Mich. 263, 291 N.W. 562 (1940); In re Schnitzer, 295 Mich. 736, 295 N.W. 478 (1940); In re Ward, 295 Mich. 742, 295 N.W. 483 (1940); and In re Cohen, 295 Mich. 748, 295 N.W. 481 (1940).
29 Louisiana v. Dominguez, 228 La. 284, 82 So. (2d) 12 (1955); Kentucky v. Rhine, 303 So. (2d) 301 (Sup. Ct., Ky., 1957); State v. Kelly, 71 So. (2d) 887 (Sup. Ct., Fla., 1954); and Lorenzo v. Blackburn, 74 So.(2d) 289 (Sup. Ct., Fla., 1954). The rule was cited in the latter two decisions, even though the Court could find no likelihood of the witness' testimony aiding federal prosecution.
30 Case Comment, U. of Pa. L. Rev., Vol. 96 (Feb. 1948), 416.
31 322 U.S. 487 (1944). A law passed in 1868 made information compelled by both national and state officials inadmissible in federal courts. See 15 Stat. 37 (1868), Rev. Stat. (1875) sec. 860. However, the statute was repealed in 1910, 36 Stat. 352 (1910).
32 Ibid., pp. 498 ff.
33 See Anderson, William, The Nation and The States, Rivals or Partners? (Minneapolis: The University of Minnesota Press, 1955)Google Scholar; Clark, Jane Perry; The Rise of a New Federalism (New York: Columbia University Press, 1938).Google Scholar
34 357 U.S. 371 (1958).
35 Ibid., p. 380.
36 Ibid., p. 384.
37 360 U.S. 230 (1959).
38 26 U.S.C. (1958) secs. 4401–4422. Two separate taxes are involved: one (sec. 4401) is a 10 per cent tax on the amount of wagers placed with the gambling operator; the other (sec. 4411) is an occupational tax of fifty dollars for the privilege of engaging in the business of wagering. Sec. 4412 prescribes the registration requirements; sec. 6107, ibid., covers public inspection and certification.
39 345 U.S. 22 (1953).
40 347 U.S. 128 (1954).
41 It will be recalled, however, that the Florida Supreme Court in Boynton v. State refused to uphold the results of a forfeiture proceeding, pertaining to gambling operations, based at least in part upon information filed with federal tax authorities. See note 21 above.
42 J. A. C. Grant, op. cit. note 6 above, Vol. 5 (January, 1958), 23 f. Professor Grant also points out that in some circumstances a person fleeing the jurisdiction of a state can be brought back by federal officials under the provisions of the Fugitive Felon Act, 18 U.S.C. (1958) sec. 1073.
43 Cited supra note 34, pp. 380 f.
44 Ibid., p. 385.
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