Respondent state prison inmates in No. 74-1194 filed an action
for declaratory and injunctive relief alleging that procedures used
in prison disciplinary proceedings violated their rights to due
process and equal protection of the laws under the Fourteenth
Amendment. The District Court granted relief, and the Court of
Appeals affirmed, holding that minimum notice and a right to
respond are due an inmate faced even with a temporary suspension of
privileges, that an inmate at a disciplinary hearing who is denied
the privilege of confronting and cross-examining witnesses must
receive written reasons or the denial will be deemed
prima
facie evidence of abuse of discretion, and that an inmate
facing prison discipline for a violation that might also be
punishable in state criminal proceedings has a right to counsel
(not just counsel substitute) at the prison hearing. Respondent
state prison inmate in No. 74-1187, upon being charged with
inciting a prison disturbance, was summoned before prison
authorities and informed that he might be prosecuted for a
violation of state law, that he should consult an attorney
(although the attorney would not be permitted to be present during
the disciplinary hearing), and that he had a right to remain silent
during the hearing, but that, if he did so, his silence would be
held against him. On the basis of the hearing, at which respondent
remained silent, he was placed in "punitive segregation" for 30
days. He then filed an action for damages and injunctive relief,
claiming that the disciplinary hearing violated the Due Process
Clause of the Fourteenth Amendment. The District Court denied
relief, but the Court of Appeals reversed, holding that an inmate
at a prison disciplinary proceeding must be advised of his right to
remain silent, that he must not be questioned further once he
exercises that right, that such silence may not be used against him
at that time or in future proceedings, and that, where criminal
charges
Page 425 U. S. 309
are a realistic possibility, prison authorities should consider
whether defense counsel, if requested, should be permitted at the
proceeding.
Held: The procedures required by the respective Courts
of Appeals are either inconsistent with the "reasonable
accommodation" reached in
Wolff v. McDonnell, 418 U.
S. 539, between institutional needs and objectives and
the constitutional provisions of general application, or are
premature on the basis of the case records. Pp.
425 U. S.
314-324.
(a) Prison inmates do not "have a right to either retained or
appointed counsel in disciplinary hearings."
Wolff, supra,
at
418 U. S. 570.
Pp.
425 U. S.
314-315.
(b) Permitting an adverse inference to be drawn from an inmate's
silence at his disciplinary proceedings is not, on its face, an
invalid practice, and there is no basis in the record for
invalidating it as applied to respondent in No. 74-1187. Pp.
425 U. S.
316-320.
(c) Mandating that inmates should have the privilege of
confrontation and cross-examination of witnesses at prison
disciplinary proceedings, except where prison officials can justify
their denial of such privilege on grounds that would satisfy a
court of law, effectively preempts the area that
Wolff,
supra, left to the sound discretion of prison officials, and
there is no evidence of abuse of such discretion by the prison
officials in No. 74-1194. Pp.
425 U. S.
320-323.
(d) Where there was no evidence that any of the respondents in
No. 74-1194 were subject to the "lesser penalty" of loss of
privileges, but rather it appeared that all were charged with
"serious misconduct," the Court of Appeals acted prematurely to the
extent it required procedures such as notice and an opportunity to
respond even when an inmate is faced with a temporary suspension of
privileges. Pp.
425 U. S.
323-324.
No. 74-1187, 510 F.2d 534; No. 74-1194, 510 F.2d 613,
reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined,
and in Part V of which BRENNAN and MARSHALL, JJ., joined. BRENNAN,
J., filed an opinion concurring in part and dissenting in part, in
which MARSHALL, J., joined,
post, p.
425 U. S. 324.
STEVENS, J., took no part in the consideration or decision of the
cases.
Page 425 U. S. 310
MR. JUSTICE WHITE delivered the opinion of the Court.
These cases present questions as to procedures required at
prison disciplinary hearings and as to the reach of our recent
decision in
Wolff v. McDonnell, 418 U.
S. 539 (1974).
I
A.
No. 7-1191
Respondents are inmates of the California penal institution at
San Quentin. They filed an action under 42 U.S.C. § 1983
seeking declaratory and injunctive relief and alleging that the
procedures used in disciplinary proceedings at San Quentin violated
their rights to due process and equal protection of the laws under
the Fourteenth Amendment of the Constitution. [
Footnote 1] After an evidentiary
Page 425 U. S. 311
hearing, the District Court granted substantial relief.
Clutchette v. Procunier, 328 F.
Supp. 767 (ND Cal.1971). The Court of Appeals for the Ninth
Circuit, with one judge dissenting, affirmed, 497 F.2d 809 (1974),
holding that an inmate facing a disciplinary proceeding at San
Quentin was entitled to notice of the charges against him, to be
heard and to present witnesses, to confront and cross-examine
witnesses, to face a neutral and detached hearing body, and to
receive a decision based solely on evidence presented at the
hearing. The court also held that an inmate must be provided with
counsel or a counsel substitute when the consequences
Page 425 U. S. 312
of the disciplinary action are "serious," such as prolonged
periods of "isolation."
Id. at 821. The panel of the Court
of Appeals, after granting rehearing to reconsider its conclusions
in light of our intervening decision in
Wolff, supra,
reaffirmed its initial judgment -- again with one judge dissenting
-- but modified its prior opinion in several respects. 510 F.2d 613
(1975). The Court of Appeals held that minimum notice and a right
to respond are due an inmate faced even with a temporary suspension
of privileges, that an inmate at a disciplinary hearing who is
denied the privilege of confronting and cross-examining witnesses
must receive written reasons for such denial or the denial "will be
deemed
prima facie evidence of abuse of discretion,"
id. at 616, and -- reaffirming its initial view -- that an
inmate facing prison discipline for a violation that might also be
punishable in state criminal proceedings has a right to counsel
(not just counsel substitute) at the prison hearing. We granted
certiorari and set the case for oral argument with No. 74-1187. 421
U.S. 1010 (1975).
B.
No. 74-1187
Respondent Palmigiano is an inmate of the Rhode Island Adult
Correctional Institution serving a life sentence for murder. He was
charged by correctional officers with "inciting a disturbance and
disrupt[ion] of [prison] operations, which might have resulted in a
riot." App. 197 (No. 74-1187). He was summoned before the prison
Disciplinary Board and informed that he might be prosecuted for a
violation of state law, that he should consult his attorney
(although his attorney was not permitted by the Board to be present
during the hearing), that he had a right to remain silent during
the hearing, but that, if he remained silent, his silence would be
held against him. Respondent availed himself of the counsel
substitute provided for by prison rules and remained
Page 425 U. S. 313
silent during the hearing. The Disciplinary Board's decision was
that respondent be placed in "punitive segregation" for 30 days and
that his classification status be downgraded thereafter.
Respondent filed an action under 42 U.S.C. § 1983 for
damages and injunctive relief, claiming that the disciplinary
hearing violated the Due Process Clause of the Fourteenth Amendment
of the Constitution. [
Footnote
2] The District
Page 425 U. S. 314
Court held an evidentiary hearing and denied relief. The Court
of Appeals for the First Circuit, with one judge dissenting,
reversed, holding that respondent
"was denied due process in the disciplinary hearing only insofar
as he was not provided with use immunity for statements he might
have made within the disciplinary hearing, and because he was
denied access to retained counsel within the hearing."
487 F.2d 1280, 1292 (1973). We granted certiorari, vacated the
judgment of the Court of Appeals, and remanded to that court for
further consideration in light of
Wolff v. McDonnell,
supra, decided in the interim. 418 U.S. 908 (1974). On remand,
the Court of Appeals affirmed its prior decision, but modified its
opinion. 510 F.2d 534 (1974). The Court of Appeals held that an
inmate at a prison disciplinary proceeding must be advised of his
right to remain silent, that he must not be questioned further once
he exercises that right, and that such silence may not be used
against him at that time or in future proceedings. With respect to
counsel, the Court of Appeals held:
"[I]n cases where criminal charges are a realistic possibility,
prison authorities should consider whether defense counsel, if
requested, should not be let into the disciplinary proceeding, not
because
Wolff requires it in that proceeding, but because
Miranda [v. Arizona, 384 U. S. 436 (1966)] requires
it in light of future criminal prosecution."
Id. at 537.
We granted certiorari and heard the case with No. 74-1194. 421
U.S. 1010 (1975).
II
In
Wolff v. McDonnell, supra, drawing comparisons to
Gagnon v. Scarpelli, 411 U. S. 778
(1973), we said:
"The insertion of counsel into the [prison] disciplinary process
would inevitably give the proceedings
Page 425 U. S. 315
a more adversary cast and tend to reduce their utility as a
means to further correctional goals. There would also be delay and
very practical problems in providing counsel in sufficient numbers
at the time and place where hearings are to be held. At this stage
of the development of these procedures, we are not prepared to hold
that inmates have a right to either retained or appointed counsel
in disciplinary proceedings."
418 U.S. at
418 U. S.
570.
Relying on
Miranda v. Arizona, 384 U.
S. 436 (1966), and
Mathis v. United States,
391 U. S. 1 (1968),
both Courts of Appeals in these cases held that prison inmates are
entitled to representation at prison disciplinary hearings where
the charges involve conduct punishable as a crime under state law
not because of the services that counsel might render in connection
with the disciplinary proceedings themselves, but because
statements inmates might make at the hearings would perhaps be used
in later state court prosecutions for the same conduct.
Neither
Miranda, supra, nor
Mathis, supra, has
any substantial bearing on the question whether counsel must be
provided at "[p]rison disciplinary hearings [which] are not part of
a criminal prosecution."
Wolff v. McDonnell, supra at
418 U. S. 556.
The Court has never held, and we decline to do so now, that the
requirements of those cases must be met to render pretrial
statements admissible in other than criminal cases.
We see no reason to alter our conclusion so recently made in
Wolff that inmates do not "have a right to either retained
or appointed counsel in disciplinary hearings." 418 U.S. at
418 U. S. 570.
Plainly, therefore, state authorities were not in error in failing
to advise Palmigiano to the contrary,
i.e., that he was
entitled to counsel at the hearing and that the State would furnish
counsel if he did not have one of his own.
Page 425 U. S. 316
III
Palmigiano was advised that he was not required to testify at
his disciplinary hearing, and that he could remain silent, but that
his silence could be used against him. The Court of Appeals for the
First Circuit held that the self-incrimination privilege of the
Fifth Amendment, made applicable to the States by reason of the
Fourteenth Amendment, forbids drawing adverse inferences against an
inmate from his failure to testify. The State challenges this
determination, and we sustain the challenge.
As the Court has often held, the Fifth Amendment
"not only protects the individual against being involuntarily
called as a witness against himself in a criminal prosecution, but
also privileges him not to answer official questions put to him in
any other proceeding, civil or criminal, formal or informal, where
the answers might incriminate him in future criminal
proceedings."
Lefkowitz v. Turley, 414 U. S. 70,
414 U. S. 77
(1973). Prison disciplinary hearings are not criminal proceedings;
but if inmates are compelled in those proceedings to furnish
testimonial evidence that might incriminate them in later criminal
proceedings, they must be offered "whatever immunity is required to
supplant the privilege," and may not be required to "waive such
immunity."
Id. at
414 U. S. 85;
Garrity v. New Jersey,
385 U. S. 493
(1967);
Gardner v. Broderick, 392 U.
S. 273 (1968);
Sanitation Men v. Sanitation
Comm'r, 392 U. S. 280
(1968). In this line of cases from
Garrity to
Lefkowitz, the States, pursuant to statute, sought to
interrogate individuals about their job performance or about their
contractual relations with the State; insisted upon waiver of the
Fifth Amendment privilege not to respond or to object to later use
of the incriminating statements in criminal prosecutions; and, upon
refusal to waive, automatically
Page 425 U. S. 317
terminated employment or eligibility to contract with the State.
Holding that the State could not Constitutionally seek to compel
testimony that had not been immunized by threats of serious
economic reprisal, we invalidated the challenged statutes.
The Court has also plainly ruled that it is constitutional error
under the Fifth Amendment to instruct a jury in a criminal case
that it may draw an inference of guilt from a defendant's failure
to testify about facts relevant to his case.
Griffin v.
California, 380 U. S. 609
(1965). This holding paralleled the existing statutory policy of
the United States,
id. at
380 U. S. 612,
and the governing statutory or constitutional rule in the
overwhelming majority of the States. 8 J. Wigmore, Evidence 425-439
(McNaughton rev.1961).
The Rhode Island prison rules do not transgress the foregoing
principles. No criminal proceedings are or were pending against
Palmigiano. The State has not, contrary to
Griffin, sought
to make evidentiary use of his silence at the disciplinary hearing
in any criminal proceeding. Neither has Rhode Island insisted or
asked that Palmigiano waive his Fifth Amendment privilege. He was
notified that he was privileged to remain silent if he chose. He
was also advised that his silence could be used against him, but a
prison inmate in Rhode Island electing to remain silent during his
disciplinary hearing, as respondent Palmigiano did here, is not, in
consequence of his silence, automatically found guilty of the
infraction with which he has been charged. Under Rhode Island law,
disciplinary decisions "must be based on substantial evidence
manifested in the record of the disciplinary proceeding."
Morris v. Travisono, 310 F.
Supp. 857, 873 (RI 1970). It is thus undisputed that an
inmate's silence in and of itself is insufficient to support an
adverse decision by the Disciplinary Board. In
Page 425 U. S. 318
this respect, this case is very different from the circumstances
before the Court in the
Garrity-Lefkowitz decisions, where
refusal to submit to interrogation and to waive the Fifth Amendment
privilege, standing alone and without regard to the other evidence,
resulted in loss of employment or opportunity to contract with the
State. There, failure to respond to interrogation was treated as a
final admission of guilt. Here, Palmigiano remained silent at the
hearing in the face of evidence that incriminated him; and, as far
as this record reveals, his silence was given no more evidentiary
value than was warranted by the facts surrounding his case. This
does not smack of an invalid attempt by the State to compel
testimony without granting immunity or to penalize the exercise of
the privilege. The advice given inmates by the decisionmakers is
merely a realistic reflection of the evidentiary significance of
the choice to remain silent.
Had the State desired Palmigiano's testimony over his Fifth
Amendment objection, we can but assume that it would have extended
whatever use immunity is required by the Federal Constitution. Had
this occurred, and had Palmigiano nevertheless refused to answer,
it surely would not have violated the Fifth Amendment to draw
whatever inference from his silence that the circumstances
warranted. Insofar as the privilege is concerned, the situation is
little different where the State advises the inmate of his right to
silence but also plainly notifies him that his silence will be
weighed in the balance.
Our conclusion is consistent with the prevailing rule that the
Fifth Amendment does not forbid adverse inferences against parties
to civil actions when they refuse to testify in response to
probative evidence offered against them: the Amendment "does not
preclude the inference where the privilege is claimed by a party to
a civil cause." 8 J. Wigmore, Evidence 439 (McNaughton rev.1961).
In criminal cases, where the stakes are
Page 425 U. S. 319
higher and the State's sole interest is to convict,
Griffin prohibits the judge and prosecutor from suggesting
to the jury that it may treat the defendant's silence as
substantive evidence of guilt. Disciplinary proceedings in state
prisons, however, involve the correctional process and important
state interests other than conviction for crime. We decline to
extend the
Griffin rule to this context.
It is important to note here that the position adopted by the
Court of Appeals is rooted in the Fifth Amendment and the policies
which it serves. It has little to do with a fair trial, and
derogates, rather than improves, the chances for accurate
decisions. Thus, aside from the privilege against compelled
self-incrimination, the Court has consistently recognized that, in
proper circumstances, silence in the face of accusation is a
relevant fact not barred from evidence by the Due Process Clause.
Adamson v. California, 332 U. S. 46
(1947);
United States ex rel. Bilokumsky v. Tod,
263 U. S. 149,
263 U. S.
153-154 (1923);
Raffel v. United States,
271 U. S. 494
(1926);
Twining v. New Jersey, 211 U. S.
78 (1908).
See also United States v. Hale,
422 U. S. 171,
422 U. S.
176-177 (1975);
Gastelum-Quinones v. Kennedy,
374 U. S. 469,
374 U. S. 479
(1963);
Grunewald v. United States, 353 U.
S. 391,
353 U. S.
418-424 (1957). Indeed, as Mr. Justice Brandeis
declared, speaking for a unanimous court in the
Tod case,
supra, which involved a deportation: "Silence is often
evidence of the most persuasive character." 263 U.S. at
263 U. S.
153-154. And just last Term, in
Hale, supra,
the Court recognized that
"[f]ailure to contest an assertion . . . is considered evidence
of acquiescence . . . if it would have been natural under the
circumstances to object to the assertion in question."
422 U.S. at
422 U. S. 176.
[
Footnote 3]
Page 425 U. S. 320
The short of it is that permitting an adverse inference to be
drawn from an inmate's silence at his disciplinary proceedings is
not, on its face, an invalid practice; and there is no basis in the
record for invalidating it as here applied to Palmigiano. [
Footnote 4]
IV
In
Wolff v. McDonnell, we held that
"the inmate facing disciplinary proceedings should be allowed to
call
Page 425 U. S. 321
witnesses and present documentary evidence in his defense when
permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals."
418 U.S. at
418 U. S. 566.
We noted that,
"[o]rdinarily, the right to present evidence is basic to a fair
hearing; but the unrestricted right to call witnesses from the
prison population carries obvious potential for disruption and for
interference with the swift punishment that, in individual cases
may be essential to carrying out the correctional program of the
institution."
Ibid. The right to call witnesses, like other due
process rights delineated in
Wolff, is thus circumscribed
by the necessary "mutual accommodation between institutional needs
and objectives and the provisions of the Constitution that are of
general application."
Id. at
418 U. S. 556.
Within the reasonable limitations necessary in the prison
disciplinary context, we suggested, but did not require, that the
disciplinary committee "state its reason for refusing to call a
witness, whether it be for irrelevance, lack of necessity, or the
hazards presented in individual cases."
Id. at
418 U. S.
566.
We were careful to distinguish between this limited right to
call witnesses and other due process rights at disciplinary
hearings. We noted expressly that, in comparison to the right to
call witnesses, "[c]onfrontation and cross-examination present
greater hazards to institutional interests."
Id. at
418 U. S. 567.
We said:
"If confrontation and cross-examination of those furnishing
evidence against the inmate were to be allowed as a matter of
course, as in criminal trials, there would be considerable
potential for havoc inside the prison walls. Proceedings would
inevitably be longer and tend to unmanageability."
Ibid. We therefore concluded that
"[t]he better course at this time, in a period where prison
practices are diverse and
Page 425 U. S. 322
somewhat experimental, is to leave these matters to the sound
discretion of the officials of state prisons."
Id. at
418 U. S.
569.
Although acknowledging the strictures of
Wolff with
respect to confrontation and cross-examination, the Court of
Appeals for the Ninth Circuit, on rehearing in No. 74-1194, went on
to require prison authorities to provide reasons in writing to
inmates denied the privilege to cross-examine or confront witnesses
against them in disciplinary proceedings; absent explanation,
failure to set forth reasons related to the prevention of one or
more of the four concerns expressly mentioned in
Wolff
would be deemed
prima facie abuse of discretion.
This conclusion is inconsistent with
Wolff. We
characterized as "useful," but did not require, written reasons for
denying inmates the limited right to call witnesses in their
defense. We made no such suggestion with respect to confrontation
and cross-examination which, as was there pointed out, stand on a
different footing because of their inherent danger and the
availability of adequate bases of decision without them.
See 418 U.S. at
418 U. S.
567-568. Mandating confrontation and cross-examination,
except where prison officials can justify their denial on one or
more grounds that appeal to judges, effectively preempts the area
that
Wolff left to the sound discretion of prison
officials. [
Footnote 5] We add
that, on the record before us,
Page 425 U. S. 323
there is no evidence of the abuse of discretion by the state
prison officials.
Finally, the Court of Appeals for the Ninth Circuit in No.
74-1194 held that minimum due process -- such as notice,
opportunity for response, and statement of reasons for action by
prison officials -- was necessary where inmates were deprived of
privileges. 510 F.2d at 615. We did not reach the issue in
Wolff; indeed, we said:
"We do not suggest, however, that the procedures required by
today's decision for the deprivation of good time would also be
required for the imposition of lesser penalties such as the loss of
privileges."
418 U.S. at
418 U. S. 572
n.19. Nor do we find it necessary to reach the issue now in light
of the record before us. None of the named plaintiffs in No.
74-1194 was subject solely to loss of privileges; all were brought
before prison disciplinary hearings for allegations of the type of
"serious misconduct," 418 U.S. at
418 U. S. 558,
that we held in
Wolff to trigger procedures therein
outlined.
See n 1,
supra. Without such a record, we are unable to consider
the degree of "liberty" at stake in loss of privileges and thus
whether some sort of procedural safeguards are due when only such
"lesser penalties" are at stake. To the extent that the Court of
Appeals for the Ninth Circuit required any procedures in such
circumstances, the Court of Appeals
Page 425 U. S. 324
acted prematurely, and its decision on the issue cannot stand.
[
Footnote 6]
We said in
Wolff v. McDonnell:
"As the nature of the prison disciplinary process changes in
future years, circumstances may then exist which will require
further consideration and reflection of this Court. It is our view,
however, that the procedures we have now required in prison
disciplinary proceedings represent a reasonable accommodation
between the interests of the inmates and the needs of the
institution."
418 U.S. at
418 U. S. 572.
We do not retreat from that view. However, the procedures required
by the Courts of Appeals in Nos. 74-1187 and 74-1194 are either
inconsistent with the "reasonable accommodation" reached in
Wolff or premature on the bases of the records before us.
The judgments in Nos. 74-1187 and 74-1194 accordingly are
Reversed.
MR. JUSTICE STEVENS took no part in the consideration or
decision of these cases.
* Together with No. 74-1194,
Enomoto, Corrections Director,
et al. v. Clutchette et al., on certiorari to the United
States Court of Appeals for the Ninth Circuit.
[
Footnote 1]
Respondents John Wesley Clutchette and George L. Jackson brought
suit
"on their own behalf, and, pursuant to Rule 23(b)(1) and Rule
23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all
other inmates of San Quentin State Prison subject to defendants'
jurisdiction and affected by the policies, practices or acts of
defendants complained of herein."
Plaintiffs' Amended Complaint, 1 Record 33 (No. 74-1194). The
District Court treated the suit as a class action,
Clutchette
v. Procunier, 328 F.
Supp. 767, 769-770 (ND Cal.1971), but did not certify the
action as a class action within the contemplation of Fed.Rules
Civ.Proc. 23(c)(1) and 23(c)(3). Without such certification and
identification of the class, the action is not properly a class
action.
Indianapolis School Comm'rs v. Jacobs,
420 U. S. 128
(1975). We were advised at oral argument in No. 74-1194 that
respondent Clutchette was paroled in 1972, two years after the suit
was filed; counsel for respondents conceded that the case is moot
as to him. Tr. of Oral Arg. (No. 74-1194), p. 34. We were further
advised that respondent Jackson died after the suit was filed.
However, the parties stipulated on June 21, 1972, to the
intervention of Alejandro R. Ferrel as a named party plaintiff in
the suit. 3 Record 285 (No. 741194). The parties further stipulated
the facts that, like Clutchette and Jackson, Ferrel was an inmate
at San Quentin who was brought before a disciplinary committee for
an infraction that could have also led to state criminal
proceedings, that he asked for and was denied an attorney at the
hearing, and that he was assigned to "segregation" for an
unspecified number of days for the infraction. Ferrel, we were told
at oral argument, is still incarcerated at San Quentin. Tr. of Oral
Arg. 34 (No. 74-1194). He thus has standing as a named plaintiff to
raise the issues before us in No. 74-1194.
[
Footnote 2]
The United States, as
amicus curiae, suggests that No.
74-1187 is not properly before the Court because the case involves
the constitutionality of regulations of the Rhode Island Adult
Corrections Authority, and hence should have been heard by a
three-judge court, subject to review here on direct appeal. The
applicable regulations of the Authority when this case was brought
had been promulgated as the result of a negotiated settlement of
litigation in the District Court for the District of Rhode Island.
Morris v. Travisono, 310 F.
Supp. 857 (1970). It is conceded that they have become state
law, and it would appear that they are of state-wide effect. The
rules, on their face, however, although regulating in some detail
the procedures required in prison disciplinary hearings, do not
expressly grant or deny, or even mention, the right to counsel
where charges brought are also a crime under state law. Nor do they
suggest, one way or the other, whether an inmate's silence may be
used against him in the proceeding itself. Palmigiano's complaint
did not mention or challenge any rule or regulation of the
Authority; nor did it seek an injunction against the enforcement of
any identified rule. What it asked was that the Board's
disciplinary decision be declared invalid and its enforcement
enjoined. Neither Palmigiano nor the State asked or suggested that
a three-judge court be convened. It would not appear that the
District Court considered the validity of any of the Authority's
rules to be at stake. That court ruled Palmigiano was not entitled
to be represented by counsel, not because the applicable rules
forbade it, but because it considered the controlling rule under
the relevant cases was to this effect. The Court of Appeals,
although quite aware that constitutional attacks on the Rhode
Island prison rules might necessitate a three-judge court,
see
Souza v. Travisono, 498 F.2d 1120, 1121-1122 (CA1 1974),
evidently did not doubt its jurisdiction in this case. On the
record before us, the provisions of 28 U.S.C. § 2281 with
respect to three-judge courts would not appear to be
applicable.
[
Footnote 3]
The Court based its statement on 3A J. Wigmore, Evidence §
1042 (Chadbourn rev.1970), which reads as follows:
"Silence, omissions, or negative statements, as inconsistent:
(1) Silence, etc., as constituting the impeaching statement. A
failure to assert a fact, when it would have been natural
to assert it, amounts in effect to an assertion of the nonexistence
of the fact. This is conceded as a general principle of evidence
(§ 1071
infra). There may be explanations, indicating
that the person had in truth no belief of that tenor; but the
conduct is '
prima facie' an inconsistency."
"There are several common classes of cases:"
"(1) Omissions
in legal proceedings to assert what
would naturally have been asserted under the circumstances."
"(2) Omissions to assert anything, or to speak with such detail
or positiveness,
when formerly narrating, on the stand or
elsewhere, the matter now dealt with."
"(3)
Failure to take the stand at all, when it would
have been natural to do so."
"In all of these, much depends on the individual circumstances,
and, in all of them, the underlying test is would it have been
natural for the person to make the assertion in question?"
(Emphasis in original.) (Footnotes omitted.)
[
Footnote 4]
The record in No. 74-1187 shows that Palmigiano was provided
with copies of the Inmate Disciplinary Report and the superior's
investigation report, containing the charges and primary evidence
against him, on the day before the disciplinary hearing. At the
hearing, Captain Baxter read the charge to Palmigiano and
summarized the two reports. In the face of the reports, which he
had seen, Palmigiano elected to remain silent. The Disciplinary
Board's decision was based on these two reports, Palmigiano's
decision at the hearing not to speak to them, and supplementary
reports made by the officials filing the initial reports. All of
the documents were introduced in evidence at the hearing before the
District Court in this case. App. 197-202 (No. 74-1187).
[
Footnote 5]
The Court of Appeals also held, in its initial opinion
(unmodified in rehearing with respect to this point), that
"the disciplinary committee must be required to make its fact
finding determinations based solely upon the evidence presented at
the hearing"
in order "[f]or the right to confront and cross-examine adverse
witnesses to be meaningful." 497 F.2d at 820. Because we have held
that there is no general right to confront and cross-examine
adverse witnesses, it follows that the Court of Appeals' holding on
this point must fall with its rejected premise. Due to the peculiar
environment of the prison setting, it may be that certain facts
relevant to the disciplinary determination do not come to light
until after the formal hearing. It would be unduly restrictive to
require that such facts be excluded from consideration, inasmuch as
they may provide valuable information with respect to the incident
in question, and may assist prison officials in tailoring penalties
to enhance correctional goals. In so stating, however, we in no way
diminish our holding in
Wolff that "there must be a
written statement by the factfinders as to the evidence relied
on and reasons' for the disciplinary action." 418 U.S. at
418 U. S.
564.
[
Footnote 6]
Petitioners in No. 74-1194 have not challenged the holdings of
the Court of Appeals for the Ninth Circuit with respect to notice,
497 F.2d at 818, or to the right to be heard by a "neutral and
detached" hearing body,
id. at 820.
Cf. 418 U.S.
at
418 U. S.
570-571. Because these holdings are no longer in issue,
it is unnecessary for us to consider them.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
concurring in part and dissenting in part.
I agree that consideration of the procedural safeguards
necessary where an inmate is deprived only of privileges is
premature on this record, and thus I join
425 U.
S. which leaves open whether an inmate may be deprived
of privileges in the absence of due process safeguards.
Page 425 U. S. 325
Parts
425 U. S. S.
320|>IV of the Court's opinion simply reaffirm
Wolff v.
McDonnell, 418 U. S. 539
(1974). I continue to believe that
Wolff approved
procedural safeguards short of the minimum requirements of the Due
Process Clause, and I dissent from Parts II and IV for the reasons
stated by my Brother MARSHALL, 418 U.S. at
418 U. S.
580.
425 U. S.
however, confronts an issue not present in
Wolff,
[
Footnote 2/1] and, in my view,
reaches an erroneous conclusion. The Court acknowledges that
inmates have the right to invoke the privilege against compulsory
self-incrimination in prison disciplinary proceedings,
ante at
425 U. S. 316,
but nevertheless holds that
"permitting an adverse inference to be drawn from an inmate's
silence at his disciplinary proceedings is not, on its face, an
invalid practice,"
ante at
425 U. S. 320,
and was proper in the circumstances of this case. This conclusion
cannot be reconciled with the numerous cases holding that the
government is barred from penalizing an individual for exercising
the privilege; precedents require the holding that, if government
officials ask questions of an individual
Page 425 U. S. 326
to elicit incriminating information, as happened here, the
imposition of any substantial sanction on that individual for
remaining silent violates the Fifth Amendment. That principle
prohibits reliance on any inference of guilt from the exercise of
the privilege in the context of a prison disciplinary hearing.
I
As we have frequently and consistently recognized:
"The constitutional privilege against self-incrimination has two
primary interrelated facets: the Government may not use compulsion
to elicit self-incriminating statements,
see, e.g., Counselman
v. Hitchcock, 142 U. S. 547; and the
Government may not permit the use in a criminal trial of
self-incriminating statements elicited by compulsion.
See,
e.g., Haynes v. Washington, 373 U. S. 503."
Murphy v. Waterfront Comm'n, 378 U. S.
52,
378 U. S. 57 n.
6 (1964). Indeed, only weeks ago, we said that "the privilege
protects against the use of compelled statements
as well
as guarantees the right to remain silent absent immunity."
Garner v. United States, 424 U. S. 648,
424 U. S. 653
(1976) (emphasis supplied).
Malloy v. Hogan, 378 U. S.
1 (1964), held that the Fifth Amendment -- the
"essential mainstay" of our "American system of criminal
prosecution,"
id. at
378 U. S. 7 --
protects
"the right of a person to remain silent unless he chooses to
speak in the unfettered exercise of his own will, and to suffer no
penalty . . . for such silence."
Id. at
378 U. S. 8.
See Spevack v. Klein, 385 U. S. 511,
385 U. S. 514
(1967). As THE CHIEF JUSTICE noted last Term:
"This Court has always broadly construed [the Fifth Amendment]
protection to assure that an individual is not compelled to produce
evidence which later may be used against him as an accused in a
criminal action."
Maness v. Meyers, 419 U. S. 449,
419 U. S.
461
Page 425 U. S. 327
(1975). Further,
"a witness protected by the privilege may rightfully refuse to
answer unless and until he is protected at least against the use of
his compelled answers and evidence derived therefrom in any
subsequent criminal case in which he is a defendant.
Kastigar
v. United States, 406 U. S. 441 (1972)."
Lefkowitz v. Turley, 414 U. S. 70,
414 U. S. 78
(1973).
See Maness v. Meyers, supra at
419 U. S. 473
(WHITE, J., concurring in result).
Thus, the Fifth Amendment not only excludes from use in criminal
proceedings any evidence obtained from the defendant in violation
of the privilege, but also is operative before criminal proceedings
are instituted: it bars the government from using compulsion to
obtain incriminating information from any person. Moreover, the
protected information
"does not merely encompass evidence which may lead to criminal
conviction, but includes information which would furnish a link in
the chain of evidence that could lead to prosecution. . . .
Hoffman v. United States, 341 U. S.
479,
341 U. S. 486 (1951)."
Maness v. Meyers, supra at
419 U. S. 461.
And it is not necessary that a person be guilty of criminal
misconduct to invoke the privilege; an innocent person, perhaps
fearing that revelation of information would tend to connect him
with a crime he did not commit, also has its protection. "
The
privilege serves to protect the innocent who otherwise might be
ensnared by ambiguous circumstances.'" Grunewald v. United
States, 353 U. S. 391,
353 U. S. 421
(1957), quoting Slochower v. Board of Education,
350 U. S. 551,
350 U. S.
557-558 (1956). See E. Griswold, The Fifth
Amendment Today 10-22 (1955); Ratner, Consequences of Exercising
the Privilege Against Self-Incrimination, 24 U.Chi.L.Rev. 472
(1957).
Accordingly, the fact that no criminal proceedings were pending
against Palmigiano,
ante at
425 U. S. 317,
does not answer the crucial question posed by this case. The
evidentiary
Page 425 U. S. 328
use of his statements in a criminal proceeding lurked in the
background, but the significant element for this case is that the
Fifth Amendment also prohibits the government from compelling an
individual to disclose information that might tend to connect him
with a crime.
Maness v. Meyers, supra, pointed up this
distinction in its recognition that availability of motions to
suppress compelled testimonial evidence do not remedy the Fifth
Amendment violation. 419 U.S. at
419 U. S. 460,
419 U. S.
463.
II
It was this aspect of the privilege that we relied on in a line
of cases beginning with
Garrity v. New Jersey,
385 U. S. 493
(1967), and leading up to
Lefkowitz v. Turley, supra. The
Court says today that "this case is very different,"
ante
at
425 U. S. 318,
but, in my view, the
Garrity-Lefkowitz cases are
compelling authority that drawing an adverse inference from an
inmate's exercise of the privilege to convict him of a disciplinary
offense violates the Fifth Amendment.
In
Garrity, policemen were summoned to testify in the
course of an investigation of police corruption. They were told
that they could claim the privilege, but would be discharged if
they did.
Garrity held that imposition of the choice
between self-incrimination and job forfeiture denied the
constitutionally required "free choice to admit, to deny, or to
refuse to answer."
Lisenba v. California, 314 U.
S. 219,
314 U. S. 241
(1947). Subsequent criminal convictions were therefore set aside on
the ground that the unconstitutionally compelled testimony should
not have been admitted in evidence at trial.
In
Spevack v. Klein, supra, decided the same day as
Garrity, an attorney refused to honor a subpoena calling
for production of certain financial records; the sole basis for the
refusal was the privilege against self-incrimination. He was
disbarred for exercising the privilege, and
Page 425 U. S. 329
the disbarment was challenged in this Court as infringing the
Fifth Amendment. Relying on
Malloy v. Hogan, supra, at
378 U. S. 8,
Spevack held that the privilege protects individuals
against any penalty for their silence, and that its protection bars
"the imposition of any sanction which makes assertion of the Fifth
Amendment privilege
costly.'" 385 U.S. at 385 U. S. 515.
[Footnote 2/2] See Griffin v.
California, 380 U. S. 609,
380 U. S. 614
(1965). Spevack expressly stated that "[t]he threat of
disbarment and the loss of professional standing, professional
reputation, and of livelihood are powerful forms of compulsion,"
385 U.S. at 385 U. S. 516,
and therefore held that, by inferring professional misconduct, and
penalizing that misconduct solely on the basis of an invocation of
the privilege, the State had violated the Fifth Amendment.
Gardner v. Broderick, 392 U. S. 273
(1968), involved a policeman called to testify before a grand jury
investigating police corruption. He was warned of his
constitutional right to refuse to give any incriminating
information, but was also asked to waive immunity, and told that,
if he refused to do so, a state statute required that he be
discharged. He refused to waive immunity, and was discharged.
Gardner invalidated the state statute on the ground that
the Fifth Amendment does not permit the government to use its power
to discharge employees to coerce disclosure of incriminating
evidence.
Id. at
392 U. S. 279.
Sanitation Men v. Sanitation
Comm'r, 392
Page 425 U. S. 330
U.S. 280 (1968), decided the same day, turned on the same
ground. [
Footnote 2/3]
Lefkowitz v. Turley, supra, the most recent decision
involving noncriminal penalties for exercising the privilege,
concerned two architects summoned to testify before a grand jury
investigating charges of corruption relating to state contracts.
They refused to waive the privilege, and a state statute provided
that such a refusal would result in cancellation of existing state
contracts and ineligibility for future contracts for five years.
The architects brought suit, claiming that the statute violated the
privilege against compulsory self-incrimination. The Court held
that, in the absence of a grant of immunity, the government may not
compel an individual to give incriminating answers. 414 U.S. at
414 U. S. 79.
[
Footnote 2/4] A "substantial
economic sanction" in the form of loss of contracts was held
sufficient to constitute compulsion within the meaning of the Fifth
Amendment.
Id. at
414 U. S. 82. The penalty, again imposed in a
noncriminal context, was held to infringe the Fifth Amendment.
It follows that settled jurisprudence until today has been that
it is constitutionally impermissible for the government to impose
noncriminal penalties as a means of compelling individuals to forgo
the privilege. The Court therefore begs the question by
"declin[ing] to extend the
Page 425 U. S. 331
Griffin rule" to prison disciplinary proceedings,
ante at
425 U. S. 319.
Affirmance of the Court of Appeals' holding that reliance on an
inmate's silence is barred by the Fifth Amendment is required by
Spevack, Gardner, Sanitation Men, and
Lefkowitz.
The Court's attempted distinction of those cases plainly will
not wash. To be sure, refusal to waive the privilege resulted in
automatic imposition of some sanction in all of those cases. The
Court reasons that, because disciplinary decisions must be based on
substantial record evidence,
Morris v.
Travisono, 310 F.
Supp. 857, 873 (RI 1970), [
Footnote
2/5] and Palmigiano's silence
"at the hearing in the face of evidence that incriminated him .
. . was given no more evidentiary value than was warranted by the
facts surrounding his case,"
ante at
425 U. S. 318,
no automatic imposition of a sanction results, and therefore the
use of such silence
"does not smack of an invalid attempt by the State to compel
testimony without granting immunity or to penalize the exercise of
the privilege,"
ibid.
But the premise of the
Garrity-Lefkowitz line was not
that compulsion resulted from the automatic nature of the sanction,
but that a sanction was imposed that made costly the exercise of
the privilege. Plainly the penalty imposed on Palmigiano -- 30 days
in punitive segregation and a downgraded classification -- made
costly the exercise of the privilege no less than loss of
government
Page 425 U. S. 332
contracts or discharge from a state job. Even accepting the
Court's assertion that a disciplinary conviction does not
automatically follow from an inmate's silence, in sanctioning
reliance on silence as probative of guilt of the disciplinary
offense charged, the Court allows prison officials to make costly
the exercise of the privilege, something
Garrity-Lefkowitz
condemned as prohibited by the Fifth Amendment. For it cannot be
denied that the disciplinary penalty was imposed to some extent, if
not solely, [
Footnote 2/6] as a
sanction for exercising the constitutional privilege.
See
Griffin v. California, supra; United States v. Jackson,
390 U. S. 570,
390 U. S.
581-582 (1968). That plainly violates the Fifth
Amendment.
It is inconsequential that the State is free to determine the
probative weight to be attached to silence.
Garrity-Lefkowitz did not consider probative value, and
other precedents deny the State power to attach any probative
weight whatever to an individual's exercise of the privilege, as I
develop more fully in
425 U. S.
Page 425 U. S. 333
The compulsion upon Palmigiano is as obvious as the compulsion
upon the individuals in
Garrity-Lefkowitz. He was told
that criminal charges might be brought against him. He was also
told that anything he said in the disciplinary hearing could be
used against him in a criminal proceeding. [
Footnote 2/7] Thus, the possibility of
self-incrimination was just as real and the threat of a penalty
just as coercive. Moreover, the Fifth Amendment does not
distinguish among types or degrees of compulsion. It prohibits
"
inducement of any sort.'" Bram v. United States,
168 U. S. 532,
168 U. S. 548
(1897).
"We have held inadmissible even a confession secured by so mild
a whip as the refusal, under certain circumstances, to allow a
suspect to call his wife until he confessed."
Malloy v. Hogan, 378 U.S. at
378 U. S. 7.
Palmigiano was forced to choose between self-incrimination and
punitive segregation or some similar penalty. Since the Court does
not overrule the
Garrity-Lefkowitz group of decisions,
those precedents compel the conclusion that this constituted
impermissible compulsion.
III
The Court also draws support from the
"prevailing rule that the Fifth Amendment does not forbid
adverse inferences against parties to civil actions when they
refuse
Page 425 U. S. 334
to testify in response to probative evidence offered against
them."
Ante at
425 U. S. 318.
That rule may prevail, but it did not have the approval of this
Court until today. Some commentators have suggested that permitting
an adverse inference in some civil cases violates the Fifth
Amendment. Comment, Penalizing the Civil Litigant Who Invokes the
Privilege Against Self-Incrimination, 24 U.Fla.L.Rev. 541, 546
(1972); Comment, 1968 U.Ill.L.F. 75; Note, Use of the Privilege
Against Self-Incrimination in Civil Litigation, 52 Va.L.Rev. 322
(1966). I would have difficulty holding such an inference
impermissible in civil cases involving only private parties. But I
would hold that compulsion violating the privilege is present in
any proceeding, criminal or civil, where a government official puts
questions to an individual with the knowledge that the answers
might tend to incriminate him.
See Garner v. United
States, 424 U.S. at
424 U. S.
655-656;
Sanitation Men v. Sanitation Comm'r,
392 U.S. at
392 U. S.
284.
Such a distinction is mandated by one of the fundamental
purposes of the Fifth Amendment: to preserve our adversary system
of criminal justice by preventing
the government from
circumventing that system by abusing its powers.
Garner v.
United States, supra at
424 U. S.
655-656. Only a few weeks ago, we said:
"That system is undermined when a government deliberately seeks
to avoid the burdens of independent investigation by compelling
self-incriminating disclosures."
Ibid.
"One of the most important functions of the privilege is to
protect all persons, whether suspected of crime or not, from abuse
by the government of its powers of investigation, arrest, trial and
punishment. It was not solicitude for persons accused of crime, but
the desire to maintain the proper balance between government and
the persons governed that
Page 425 U. S. 335
gave rise to the adoption of these constitutional
provisions."
Ratner, Consequences of Exercising the Privilege Against
Self-Incrimination, 24 U.Chi.L.Rev. 472, 484 (1957) (footnote
omitted).
In a civil suit involving only private parties, no party brings
to the battle the awesome powers of the government, and therefore
to permit an adverse inference to be drawn from exercise of the
privilege does not implicate the policy considerations underlying
the privilege. But where the government "deliberately seeks" the
answers to incriminatory questions, allowing it to benefit from the
exercise of the privilege aids, indeed encourages, governmental
circumvention of our adversary system. In contrast, an affirmance
of the judgment in Palmigiano's case would further obedience of the
government to the commands of the Fifth Amendment.
Cf. United
States v. Karathanos, 531 F.2d 26, 35 (CA2 1976) (Oakes, J.,
concurring); Amsterdam, Perspectives on the Fourth Amendment, 58
Minn.L.Rev. 349 (1974).
Nothing in this record suggests that the State does not use the
disciplinary procedure as a means to gather evidence for criminal
prosecutions. On the contrary, Palmigiano was told that he might be
prosecuted, which indicates that criminal proceedings are brought
in some instances. And if the State does not intend to initiate
criminal proceedings, the Fifth Amendment problem can be readily
avoided simply by granting immunity for any testimony given at
disciplinary hearings. [
Footnote
2/8]
Page 425 U. S. 336
IV
I would therefore affirm the judgment of the Court of Appeals in
No. 74-1187 insofar as that court held that an inmate's silence may
not be used against him in a prison disciplinary proceeding. This
would make unnecessary addressing the question whether exercise of
the privilege may be treated as probative evidence of guilt. Since
the Court, however, indicates that invocation of the privilege is
probative in these circumstances,
ante at
425 U. S. 319,
I express my disagreement. For we have repeatedly emphasized that
such an inference has no foundation. Indeed, the very cases relied
upon by the Court expose its error and support the conclusion that
Palmigiano's silence could not be treated as probative.
United States ex rel. Bilokumsky v. Tod, 263 U.
S. 149 (1923), quoted
ante at
425 U. S. 319,
involved a deportation proceeding in which the deportee failed to
deny that he was an alien. But he also failed to claim or attempt
to prove that he was a citizen. Alienage was not an element of any
crime, and his silence was held probative of his
Page 425 U. S. 337
alienage. The inference was plainly permissible, since the
deportee faced no possibility of incrimination, and there was
therefore no implication of the privilege. But Palmigiano's
predicament was that answers to the questions put to him by the
prison officials could connect him with a crime.
The Court also quotes part of a sentence from
United States
v. Hale, 422 U. S. 171
(1975). We said in
Hale that, "[i]n most circumstances,
silence is so ambiguous that it is of little probative force."
Id. at
422 U. S. 176.
We also noted that its probative force increases where a person
"would be more likely than not to dispute an untrue accusation."
Ibid. We emphasized that
"[f]ailure to contest an assertion, however, is considered
evidence of acquiescence
only if it would have been
natural under the circumstances to object to the assertion in
question."
Ibid. (emphasis supplied). That was not the case, since
Hale's silence was in response to notice that he had a right to
remain silent, and that any statements he made would be used
against him in court. These excerpts from
Hale require the
conclusion that Palmigiano's silence also had no probative force.
Palmigiano was also advised that he had a right to remain silent,
that he might be prosecuted, and that anything he said could be
used against him in court.
Finally,
Grunewald v. United States, 353 U.
S. 391 (1957), is particularly persuasive authority that
Palmigiano's silence is not probative. We there considered whether
one Halperin's exercise of the privilege was probative of guilt,
and we concluded that his silence, in the circumstances, was
"wholly consistent with innocence."
Id. at
353 U. S. 421.
"Halperin repeatedly insisted . . . that he was innocent, and that
he pleaded his Fifth Amendment privilege solely on the advice of
counsel."
Id. at
353 U. S. 422.
Similarly, Palmigiano here maintained that he was innocent, and
that he claimed the privilege on
Page 425 U. S. 338
the advice of counsel.
Grunewald was a situation
where
"the Fifth Amendment claim was made before a grand jury, where
Halperin was a compelled, and not a voluntary, witness; where he
was not represented by counsel; where he could summon no witnesses;
and where he had no opportunity to cross-examine witnesses
testifying against him."
Ibid. That was similar to Palmigiano's situation;
inmates have only a very limited right to call witnesses, and an
even more limited right of cross-examination,
ante at
425 U. S.
321-322.
Grunewald is thus most persuasive
authority that Palmigiano's silence was not probative.
See
Flint v. Mullen, 499 F.2d 100, 103 (CA1),
cert.
denied, 419 U.S. 1026 (1974). [
Footnote 2/9]
To accord silence probative force in these cases overlooks the
hornbook teaching "that one of the basic functions of the privilege
is to protect
innocent men."
Grunewald v. United
States, supra at
353 U. S. 421
(emphasis in original). If this Court's insensitivity to the
Fifth
Page 425 U. S. 339
Amendment violation present in this case portends still more
erosion of the privilege, state courts and legislatures will
remember that they remain free to afford protections of our basic
liberties as a matter of state law.
See Michigan v.
Mosley, 423 U. S. 96,
423 U. S.
120-121 (1975) (BRENNAN, J., dissenting). Contrary to
this Court's interpretation of the Federal Constitution's privilege
against compulsory self-incrimination in
Harris v. New
York, 401 U. S. 222
(1971), the California Supreme Court recently construed
California's constitutional prohibition to forbid use of an
accused's inculpatory statement obtained in violation of custodial
interrogation safeguards announced in
Miranda v. Arizona,
384 U. S. 436
(1966). The court said,
People v. Disbrow, 16 Cal. 3d
101, 113-115, 545 P.2d 272, 280 (1976):
"We . . . declare that
Harris is not persuasive
authority in any state prosecution in California. . . . We pause .
. . to reaffirm the independent nature of the California
Constitution and our responsibility to separately define and
protect the rights of California citizens despite conflicting
decisions of the United States Supreme Court interpreting the
federal Constitution. [
Footnote
2/10] "
Page 425 U. S. 340
The fact that Palmigiano is a prison inmate cannot, of course,
distinguish this case from the cases in the
Garrity-Lefkowitz line, since "a prisoner does not shed
his basic constitutional rights at the prison gate."
Wolff v.
McDonnell, 418 U.S. at
418 U. S. 581
(MARSHALL, J., dissenting);
see Jackson v. Bishop, 404
F.2d 571, 576 (CA8 1968) (Blackmun, J.). I must therefore view
today's decision as another regrettable disregard of Mr. Justice
Frankfurter's admonition that our interpretation of the privilege
is not faithful to the Founding Fathers' purpose when it does not
reflect the teaching of history:
"This command of the Fifth Amendment . . . registers an
important advance in the development of our liberty -- 'one of the
great landmarks in man's struggle to make himself civilized.' Time
has not shown that protection from the evils against which this
safeguard was directed is needless or unwarranted. This
constitutional protection must not be interpreted in a hostile or
niggardly spirit. Too many, even those who should be better
advised, view this privilege as a shelter for wrongdoers. They too
readily assume that those who invoke it are either guilty of crime
or commit perjury in claiming the privilege. Such a view does scant
honor to the patriots who sponsored the Bill of Rights as a
condition to acceptance of the Constitution by the ratifying
States."
Ullmann v. United States, 350 U.
S. 422,
350 U. S.
426-427 (1956) (footnotes omitted).
[
Footnote 2/1]
I agree that No. 74-1194 is not moot, since the intervening
plaintiff (Ferrell) has a personal stake in the outcome of this
litigation. But the citation of
Indianapolis School Comm'rs v.
Jacobs, 420 U. S. 128
(1975), is inapposite. We held that case moot because the named
plaintiffs no longer had a personal stake in the outcome, and the
action had not been formally certified as a class action.
Id. at
420 U. S. 129.
We did not, however, hold that, without such formal certification,
"the action is not properly a class action."
Ante at
425 U. S. 311
n. 1.
Jacobs applies only to the determination of
mootness, and did not deal with whether, for example, a court of
appeals may treat an action as a class action in the absence of
formal certification by the district court. Moreover, the propriety
of the certification need not be addressed, since there is a
plaintiff with a personal interest in the outcome.
Youakim v.
Miller, ante at
425 U.S.
236-237, n. 2.
[
Footnote 2/2]
Although this quotation is from the plurality opinion of four
Justices, Mr. Justice Fortas, who concurred in the judgment,
"agree[d] that Spevack could not be disbarred for asserting his
privilege against self-incrimination," 385 U.S. at
385 U. S. 520,
thus providing a majority for that proposition. He wrote separately
because he was of the view that state employees enjoyed a lesser
protection. He agreed with the result, however, because Spevack --
like Palmigiano -- was not a state employee.
Ibid. See
Gardner v. Broderick, 392 U. S. 273
(1968).
[
Footnote 2/3]
In
Sanitation Men, 15 sanitation employees called
before the Sanitation Commissioner investigating alleged
improprieties were told that a claim of the privilege as a basis
for refusing to answer questions concerning their official duties
would result in their discharge. Three employees answered and
denied the charges, but, when later called before grand juries,
refused to waive immunity and were discharged for doing so. The
Court held that to put the employees to a choice between their
constitutional rights and their jobs was compulsion that violated
the privilege. 392 U.S. at
392 U. S. 284.
[
Footnote 2/4]
"[T]he State intended to accomplish what
Garrity has
specifically prohibited -- to compel testimony that had not been
immunized." 414 U.S. at
414 U. S.
82.
[
Footnote 2/5]
Although
Morris imposes a substantial evidence standard
for appellate review of findings in disciplinary proceedings,
nothing in that case supports the Court's assumption that an
inmate's silence alone would not meet this evidentiary standard.
Ante at
425 U. S. 317;
cf. ante at
425 U. S. 313
n. 2. But if silence alone provides an evidentiary premise
sufficient for discipline, the Court's distinction of the
Garrity-Lefkowitz cases crumbles. I therefore read the
Court's opinion to imply that the Fifth Amendment bars conviction
of a disciplinary violation based solely on an inmate's silence. In
No. 74-1187, petitioners concede that an inmate's silence, without
more, would not be substantial evidence.
[
Footnote 2/6]
As the Court notes, the only evidence, other than Palmigiano's
silence, before the Disciplinary Board consisted of written reports
made by the prison officials who filed the initial charges against
Palmigiano. On the whole, the record inspires little confidence
that his silence was not the sole basis for his disciplinary
conviction. At the hearing, a prison official read the disciplinary
charges to Palmigiano and then asked him: "What happened here,
Nick?" Palmigiano's response was again to request the presence of
counsel, which had previously been denied. When the renewed request
was denied, Palmigiano stated that he would remain silent on the
advice of counsel. The official thereafter asked: "Do you intend to
answer any questions for the board?" Consistent with his earlier
statement, Palmigiano replied that he did not. The Board excused
him from the hearing room; he was called back within five minutes,
and informed that he had been found guilty and sentenced to 30
days' punitive segregation, with a possible downgrade in his
classification.
[
Footnote 2/7]
In this respect, it is not clear that all of the
Morris
requirements were observed in Palmigiano's disciplinary hearing.
Under the prison's rules, each inmate must be advised that
"statements he makes in his defense at a disciplinary hearing are
probably not admissible for affirmative use by the prosecution at a
trial." Brief for Petitioners in No. 74-1187, pp. 4-5. Palmigiano,
however, was told that anything he said could be used against him
at a criminal trial. In any event, the uncertain warning required
by the prison rules would hardly satisfy constitutional
requirements.
See 425
U.S. 308fn2/8|>n. 8,
infra. In this respect, the
Court's holding that the prisoner has no right to counsel
exacerbates the difficulty, for surely the advice of counsel is
essential in this complex area.
See Maness v. Meyers,
419 U. S. 449
(1975).
[
Footnote 2/8]
Although my view is that only transactional immunity can remove
the self-incrimination problem,
Piccirillo v. New York,
400 U. S. 548,
400 U. S. 562
(1971) (BRENNAN, J., dissenting), that view is not presently the
law.
See, e.g., Lefkowitz v. Turley, 414 U. S.
70,
414 U. S. 84
(1973);
Kastigar v. United States, 406 U.
S. 441 (1972).
Although Rhode Island prison officials are not authorized by
statute to grant immunity, my Brother WHITE has suggested that a
witness who fails to persuade a judge that a prospective answer is
incriminatory
"is nevertheless protected by a constitutionally imposed use
immunity if he answers in response to the [judge's] order and under
threat of contempt."
Maness v. Meyers, 419 U.S. at
419 U. S. 474
(concurring in result).
See Fowler v.
Vincent, 366 F.
Supp. 1224, 1228 (SDNY 1973);
Sands v.
Wainwright, 357 F.
Supp. 1062, 1093 (MD Fla.1973). Although an inmate would not be
testifying in response to a court order, his answers in response to
questions of prison officials are nevertheless compelled within the
meaning of the Fifth Amendment. Thus, there would be immunity for
any statements given. The inmate must, however, be informed of the
existence of the immunity. As my Brother WHITE said,
"a witness may not be required to answer a question if there is
some rational basis for believing that it will incriminate him, at
least without at that time being assured that neither it nor its
fruits may be used against him."
Maness v. Meyers, supra at
419 U. S. 473
(emphasis in original).
[
Footnote 2/9]
The other cases cited by the Court likewise do not support a
holding that Palmigiano's silence should have probative force. No
self-incrimination problem was presented in
Gastelum-Quinones
v. Kennedy, 374 U. S. 469
(1963). That case involved a deportation proceeding, and the
subject of that proceeding remained silent, but not for Fifth
Amendment reasons. Moreover, the Court held that "deportation is a
drastic sanction," and "must therefore be premised upon evidence .
. . more directly probative than a mere inference based upon the
alien's silence."
Id. at
374 U. S. 479.
We held that particular deportation order not based on substantial
evidence.
Id. at
374 U. S. 480.
Similarly, the Court did not address any self-incrimination issue
relevant to the instant case in
Adamson v. California,
332 U. S. 46
(1947), and
Twining v. New Jersey, 211 U. S.
78 (1908). Those cases were based on the premise,
overruled in
Malloy v. Hogan, 378 U. S.
1 (1964), that the Fifth Amendment protection against
self-incrimination was not applicable to the States. Finally,
whether
Raffel v. United States, 271 U.
S. 494 (1926), remains law is subject to much doubt.
See United States v. Hale, 422 U.
S. 171,
422 U. S. 175
n. 4 (1975);
United States v. Grunewald, 233 F.2d 556, 575
(CA2 1956) (Frank, J., dissenting),
rev'd, 353 U.
S. 391 (1957).
[
Footnote 2/10]
Other state courts have also rejected
Harris as a
matter of state constitutional law.
Commonwealth v.
Triplett, 462 Pa. 244,
341 A.2d
62 (1975);
State v. Santiago, 53 Haw. 254,
492 P.2d 657
(1971). In addition, admission of incriminating statements for
impeachment purposes can be prohibited by statute notwithstanding
the decision in
Harris. Butler v.
State, 493
S.W.2d 190 (Tex.Crim.App. 1973).
See United States v.
Jordan, 20 U.S.C.M.A. 614, 44 C.M.R. 44 (1971). Finally, it
should be noted that there need not be a state constitutional
counterpart to the Fifth Amendment or a specific statutory
prohibition to reach this result; use of incriminating statements
can be prohibited by a state court as a matter of public policy in
that State.
See In re Pillo, 11 N.J. 8,
93 A.2d
176 (1952);
State v. Miller, 67 N.J. 229, 245 n. 1,
337 A.2d
36, 45 n. 1 (1975) (Clifford, J., concurring in part and
dissenting in part).