UNITED STATES v. WASHINGTON

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Argument of William F. Sheehan

Chief Justice Warren E. Burger: We will hear arguments next in 1106 United States against Gregory Washington.

Mr. Sheehan you may proceed when you’re ready.

Mr. William F. Sheehan: Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the District of Columbia, Court of Appeals.

That Court affirmed the judgment of the Superior Court suppressing for use in evidence in respondent's prosecution for grand larceny and for receipt of stolen property, the testimony that respondent had given earlier before grand jury.

Unlike the one just heard, this case does not involve the prosecution for perjury and accordingly it poses squarely the question of whether the constitution requires the Government to warn grand jury witnesses of their privilege against self-incrimination when the Government has reason to believe that the witness maybe indicted on the basis of the testimony that is sought.

I will state some of the facts quickly since there is a claim that the Government’s conduct in this case violated the Due Process clause.

On the night of December 3, 1972, an officer of the metropolitan police stop the van type automobile after watching it make a u-turn and in the back of the van found a motorcycle that had recently been reported stolen.

The two occupants of the van were arrested and the police determined that the van belonged to the respondent and they notified him that the van was in their possession.

Within the next several days in an effort to retrieve the van, the respondent went both to the police station and to the United States attorney’s office.

On both occasions he said that he did not wish to press charges against the two men found in the van who would -- it had been thought might have stolen the van in addition to the Motorcycle.

He said they were his friends and it had his permission to use the van.

He also said that he himself had been driving the van on the evening in question and he explained the presence of -- earlier on the evening in question he had been driving the van and he explained the presence of the motorcycle in the van in a manner that both the police man to whom he spoke and the assistant United States attorney to whom he spoke found unpersuasive.

I will get his explanation in just a moment.

The policeman in fact told the respondent that he did not believe his story and that if respondent were to testify to it in Court, they would be likely to get him into trouble.

The Assistant United States Attorney gave the respondent back his van and gave the respondent also a subpoena to appear before the grand jury investigating the crime.

He did so because he was afraid respondent would not appear voluntarily either because the respondent would not want to testify against his friends or because he was himself involved.

When the respondent came before the grand jury the Assistant United States Attorney in charge not the same one who had given him the subpoena was uncertain whether or not to seek an indictment.

He was not sure what respondent's testimony would be or whether it would be believable and accordingly he decided to leave the matter entirely to the grand jury itself after they had heard his testimony -- after they had heard the testimony of the respondent.

Before the respondent testified he was given full Miranda warnings.

He said that he understood them that he wanted to answer questions regarding this after the motorcycle and that he did not want the services of a lawyer.

Unknown Speaker: He had not gotten any Miranda warnings he was talking to the Assistant U.S. Attorney?

Mr. William F. Sheehan: He had not had Miranda warnings when he was talking to the assistant.

No.

He then gave testimony to the following effect.

On the night in question he said he had been driving the van and he had stopped to help a stranger whose motorcycle had broken down.

The two of them put the motorcycle in the van, he said and drove on looking for help and the van itself drove down. Excuse me when the van itself broke down.

He then left the stranger with the motorcycle and van he said and walked a block or two away to a gasoline station where he telephoned his two friends to come help him.

He said that he waited at the gas station for two hours and his friends did not appear.

He said he then went back a block or two away to where the van had been left and found it was gone.

He said that he did not report the disappearance of the van because he said he assumed that his friends had come and fixed it and then driven it away.

The stranger who owned the motorcycle he said was never heard or seen again.

Never heard from or seen again.

Following his testimony in due course the grand jury indicted him along with the other two men for grand larceny and received stolen property.

The Superior Court then granted the respondent's motion to suppress his testimony on the ground that it had been obtained in violation of his privilege against self incrimination.

The Court held the Assistant United States Attorney conducting the grand jury had not adequately inquired into the respondents ability to understand his rights and in addition had failed to warn respondent on top of the warnings he had received that his testimony could result in an indictment by the grand jury.

In affirming, the Court of Appeals said that the principal respect in which the full Miranda warnings which respondent had received were deficient was that he had not -- was in that he had not been told that he was a potential defendant.

The upshot of the decision is that a potential defendant is entitled in the Court's view in the Court of Appeals view under the self-incrimination clause both the Miranda type warnings and to target warnings.

It seems appropriate to begin the analysis here with something that in our view the Court of Appeals gave too little attention to.

The words of the constitutional provision themselves.

No person shall be compelled in any criminal case to be a witness against himself.

This Court in Miranda against Arizona found that the procedures surrounding custody interrogation by the police of a witness of a suspect were inherently coercive.

And accordingly it held, that a set of warnings was necessary in order to balance things out.

Without those warnings it is now conclusively presumed that any testimony statements given by the witness were compelled against the suspects will.

The issue for decision today is whether questioning it in front of a grand jury is also inherently coercive that warnings are required before any testimony given by a witness in response to questions by the Government maybe considered voluntary.

Our position is that there are many differences between the questioning of a suspect by the police in custody and the questioning of a witness in regular grand jury proceedings.

For the most part, we think that these differences are self evident.

They are also -- they are in any event set out at length in our brief.

I will mention only two.

Before the decision in Miranda the interrogation by the police occurred principally in private.

In contrast, the questioning of a witness before the grand jury occurs before between 16 and 23 private citizens who are not likely to be in our view so compliant to the prosecutor's wishes as to countenance the kind of abuses that were cataloged by this Court in Miranda.

Second question, I might add that the view that I just expressed was I think stated also by Mr. Justice Black in the Groban decision.

He said it would be very difficult for officers of the state seriously to abuse or deceive a witness in the presence of the grand jury.

Moreover, the questioning in front of a grand jury is undertaken under the overall supervision of a District Court judge and frequently the questioning is transcribed and reported as it was here.

In short, the privacy that before Miranda allowed the abuses of custody interrogation that were perceived to exist.

It does not exist in the grand jury setting and there is according --

Unknown Speaker: Mr. Sheehan, your point is that this is not compulsion within the meaning of the Fifth Amendment, if I understand you correctly.

If that’s true, I would suppose it's not compulsion if he testified in a trial in open Court?

Mr. William F. Sheehan: If he testified as a witness in trial in open court.

If your question Mr. Justice well the Government has an obligation to warn a defendant in criminal cases --

Unknown Speaker: No, as I understand your argument, correct me if I’m wrong I am just trying to get the thread of the argument.

You say this is -- this situation is different from the police interrogation in a police station where the man is in custody.

Mr. William F. Sheehan: Yes indeed.

Unknown Speaker: With respect to the issue of whether or not there is compulsion.

Mr. William F. Sheehan: Yes indeed.

Unknown Speaker: And you say, there is compulsion in the police station but does not compulsion in the grand jury room because it’s more public.

Mr. William F. Sheehan: For that reason and others.

Unknown Speaker: And if that reason is valid, would it not also follow that testimony in open court pursuant to a subpoena would not be testimony pursuant -- would not be a compelled testimony.

Mr. William F. Sheehan: Yes it does indeed follow.

That is --

Unknown Speaker: Well then it would be -- to what does the Fifth Amendment ever apply then?

Mr. William F. Sheehan: To testimony that is compelled.

The subpoena does not compel testimony.

The subpoena Mr. Justice Stevens compels only the appearance of the witness and once the witness does appear in response to lawful process, it is open to the witness then to claim his privilege against self-incrimination as to any questions that he fears may tend to incriminate him.

He would be compelled in this situation only if in response to such a claim the District Court perhaps upon the grant of immunity would order him to testify.

The subpoena itself is simply legal process.

There is no constitutional privilege to object to legal process.

There is no -- he has no Fifth Amendment privilege against self incrimination.

Unknown Speaker: Let me put this case to you.

Supposing a defendant in a criminal trial decided to waive counsel and appeared from self and he was -- subpoena was served on him or he was called to the witness stand and a question was asked of him, would he be compelled to answer within -- say he didn’t know about the Fifth Amendment privilege, would that be compulsion?

Mr. William F. Sheehan: I think it would not be compulsion.

Unknown Speaker: I see.

And compulsion is the failure to exercise a privilege?

Mr. William F. Sheehan: No.

The compulsion is not the failure to exercise the privilege.

The compulsion --

Unknown Speaker: What is it?

Mr. William F. Sheehan: Compulsion occurs when by the Government’s affirmative conduct did overbears the witness's will.

Unknown Speaker: Well, then in my hypothetical case there would be no compulsion because he just didn’t realize that he was --

Mr. William F. Sheehan: Not unless he was -- not unless he was instructed by the Government that he was compelled to answer questions or that he was compelled to take the stand.

I suspected probably the hypothetical would not occur I suspect in a case like that the District Court in --

Unknown Speaker: Well he probably would give one.

I realize --

Mr. William F. Sheehan: I think the District Court probably --

Unknown Speaker: But under your position there will be no duty to warn.

No compulsion.

There will be no Fifth Amendment issues.

Mr. William F. Sheehan: No I think --

Unknown Speaker: You don’t really mean that trial judge could say take the stand.

Mr. William F. Sheehan: Oh, no.

I think that --

Unknown Speaker: That’s compulsion.

Mr. William F. Sheehan: I think that might well be compulsion sir.

Unknown Speaker: That’s the question --

Mr. William F. Sheehan: Oh, no.

No, the question to which I --

Unknown Speaker: But to do that to an ordinary witness.

An ordinary witness not a defendant must take the stand.

Mr. William F. Sheehan: That’s correct.

Unknown Speaker: And it isn’t deemed compulsion of the Fifth Amendment purposes unless he has ordered to answer over a claim of the privilege.

Mr. William F. Sheehan: That’s correct.

Indeed if the District Court just ordered the witness or that the defendant take the stand without more that would not be compulsion.

It would have to be an order to answer the questions that were put to him that would be compulsion.

Unknown Speaker: But it's well settled that whatever the logic of it maybe that it violates the Fifth Amendment even if called the defendant himself to the stand if the calling is done by the prosecution, am I correct?

The prosecution can’t say to the defendant now you take the witness stand.

Mr. William F. Sheehan: That is --

Unknown Speaker: That is a violation.

Mr. William F. Sheehan: Well, it would also be a violation -- it would also be a violation of the federal statute making the defendant competent to testify on his own behalf.

Unknown Speaker: Violation of the constitution, heaven sakes.

Mr. William F. Sheehan: I think it would be a violation of the constitution in large measure because the Government could not oblige the defendant in that case assert his privilege in front of the jury.

Chief Justice Warren E. Burger: Yes, doesn’t it fall under the cases that simply say that there can be no reference to the failure of the defendant to testify and that would be one way of calling attention to it.

Mr. William F. Sheehan: Yes, the situation is quite different Mr. Chief Justice in the setting of the grand jury.

Unknown Speaker: Long at a date set the constitutional rule of the comment on its failure to testify, which came about only about 10, 12 years ago.

This constitutional rule that violates the Fifth Amendment for the prosecution to call the defendant to the witness stand.

For centuries old, at least I think.

Mr. William F. Sheehan: Well it -- I’m not certain if it is a couple of centuries old, I’m prepared to see --

Unknown Speaker: That was long established as long as -- I’m not quite – couple of centuries old but when I was at law school I was well established and the proposition that violates the Constitution to comment on the defendant's failure to testify is only about 15 years old.

Mr. William F. Sheehan: Well I’m prepared to concede for purposes of argument here that it is indeed settled today that it would violate the constitution for the defendant -- for the Government to call the defendant to the stand or in anyway to comment upon his failure --

Unknown Speaker: If you conceded that it violates the constitution namely the Fifth Amendment to call the defendant the witness stand you must necessarily also concede that that is a form of compulsion within the meaning of the Self-incrimination Clause of the Fifth Amendment.

Mr. William F. Sheehan: Well, even if it is, my position is that the situation in the grand jury is entirely different.

The grand jury there is no rule.

Unknown Speaker: There is less compulsion in the grand jury context than in the open Court?

Mr. William F. Sheehan: Well, the --

Unknown Speaker: The argument before ran in just the opposite direction that the greater the public character, the lesser the degree of compulsion.

Chief Justice Warren E. Burger: Well, isn’t the advice of calling in the first type of the hypothetical calling him in the presence of the jury which is then made aware of his failure or his refusal to testify.

Mr. William F. Sheehan: Yes indeed.

The grand jury it seems to me --

Unknown Speaker: Wouldn’t that apply the bench trial as well as the jury trial?

Mr. William F. Sheehan: Well, I think the issue of whether the defendant can be called to the stand in a criminal case is not the issue post here.

In any event, the grand jury is entitled it would seem to me to accord whatever weight it thought it wanted to a witness's refusal to make statements in the grand jury setting.

So, I think that in contrast to the situation with the trial jury where they are not allowed to make any inference whatsoever.

For example, if the witness in the grand jury setting decided that he was going to exercise his privilege and persuaded the prosecutor they are not to call on in front of the grand jury, the prosecutor would not be precluded from telling the grand jury and for example in response to an inquiry by them why that individual would not come to testify before them that that individual is going to assert his privilege and so he had not been called.

But the touchdown of our position is that for there are to be a requirement of Miranda warnings in this case, this Court has got to find that the setting of the grand jury is as inherently coercive as is custodial interrogation.

For the reasons that I have stated in brief, we find that there is no reason in this case to reject the traditional test for determining the voluntariness of the person’s response.

Unknown Speaker: Mr. Sheehan, I interrupted you and I really didn’t mean.

You are going to give us two distinctions between the Miranda custody interrogation in the grand jury.

One being the public character and you didn’t get to the second.

Mr. William F. Sheehan: Well they were both turns on the same point.

The first was that it was public because it was in front of between 16 to 23 citizens and the second was it did have the protection of being under the overall supervision of the District Court and also there was the added safeguarded transcripts being made at the testimony in many cases as it was here.

To this point I’ve been talking only of the questioning of grand jury witnesses in general.

The Court below did not hold that all grand jury witnesses were required to receive warnings.

It held instead that only potential defendants were required to receive warnings.

It follows then that the Court must believe that the questioning of potential defendants somehow more coercive than the questioning of ordinary witnesses.

Unknown Speaker: Did the Court say well how it defined a potential defendant?

Mr. William F. Sheehan: It did not.

It would seem to us that under either of the tests for defining a potential defendant either a subjective test going to what was in the prosecutor's mind or an objective test going to what was in the prosecutors files would be the likely candidates for determining who is a potential defendant.

We failed to see however how the content of the prosecutor's mind or of his files has any bearing on the question whether the setting in the grand jury is inherently coercive.

Certainly in the Miranda situation this would be irrelevant.

I take it the police would not be heard to say that warnings were not required when they questioned an individual in custody against whom they had no intention to press charges.

Unknown Speaker: Except the only way the Miranda rule is an exclusionary rule and the only time that it arises that this is in a criminal trial and the interrogatee, whatever the word is of course as what was questioned by definition by hypothesis is now a criminal defendant.

So obviously, he was a potential defendant at the time he was being interrogated.

Mr. William F. Sheehan: Well, he may not have been a potential defendant so far as the Government knew though.

He might not have been a potential defendant so far as the police new when they questioned him but the police would nonetheless be obliged to give him warnings in the Miranda situation.

Unknown Speaker: You’re not obliged to give anybody warnings.

You know the rule is an exclusionary rule.

Mr. William F. Sheehan: Yes.

Unknown Speaker: Keeps evidence out of a criminal trial.

Mr. William F. Sheehan: Yes.

That’s true.

You’re not obliged to give warnings if you don’t give warnings and statements are made, they may not be used because they are deemed involuntary.

Well, we think that as the Court recognized last term in the Beckwith case, the Miranda presumption of involuntariness and the Miranda type safeguards should apply only when it can be said that the setting of the questioning is indeed inherently coercive and that in our view has nothing to do with whether the Government thinks or knows this or that at the time of the questioning.

My opponent does not appear to argue that questioning before grand jury is necessarily as coercive as custodial interrogation.

Indeed, at page three of respondent -- at page 23 of respondents brief note 11, it is said that the matter is open to some doubt, it’s a matter of speculation, he says it is our position that it is not as inherently coercive as custodial interrogation.

The argument instead appears to proceed upon the assumption that as was discussed earlier, the subpoena itself is a form of compulsion of --is a form of testimonial compulsion.

If that were the case, if the subpoena without more amounted to compulsion to testify in contravention of the privilege against self incrimination.

Then, it seems to me that the many immunity statutes and also the many decisions of this Court construing those statutes would be very curious indeed, if it was compulsion simply for the witness to walk into the grand jury in response to a subpoena commanding his appearance.

Unknown Speaker: It is compulsion.

It’s compulsion to appear.

Mr. William F. Sheehan: It is indeed a compulsion to appear.

It is not a compulsion to give testimonies since the witness after he appears is entitled to raise his privilege at any point that he thinks a question if answered would tend to incriminate him.

Unknown Speaker: What if he refuses to answer before the grand jury and he says I won’t answer, they take him before the judge and judge just orders him to answer.

He never claims a privilege.

Mr. William F. Sheehan: Well, I think in a situation like that under the Cordell case it might be too late for him to claim the privilege later on if he --

Unknown Speaker: Well, he never claims a privilege at any point.

You can’t say that the compulsion doesn’t arise sometimes.

It's compulsion to appear and testify, is it not?

Mr. William F. Sheehan: It's compulsion to appear and testify but not to testify as to matters that fall within your privilege against self incrimination.

Unknown Speaker: Well, there is no privilege against self incrimination, there is privilege against compulsory self incrimination.

Mr. William F. Sheehan: There is a privilege against compulsory self incrimination.

The subpoenas command to appear and testify though does not go so far as to command the testimony, as to compel the testimony from a witness that the witness reasonably believes would tend to incriminate.

Unknown Speaker: Let’s just suppose he never claims a privilege.

Never claims a privilege -- do you testify.

Mr. William F. Sheehan: And he refuses to answer.

Unknown Speaker: He just refuses to answer and the judge orders him to answer.

Mr. William F. Sheehan: Yes and then what?

Unknown Speaker: And then he answers.

And he incriminates himself.

Mr. William F. Sheehan: And incriminates himself.

Well in that case --

Unknown Speaker: Do you say that is compelled certainly.

Mr. William F. Sheehan: Well certainly if the judge orders him to answer and he does.

Unknown Speaker: Well l know but he has never claimed a privilege.

But he still is compelled to incriminate himself.

Now, what gets the Government have to look in that case?

Why is the evidence admissible?

With respect to a witness in an ordinary Courtroom it is because he didn’t claim the privilege.

Mr. William F. Sheehan: Well, I think that the general rule is because --

Unknown Speaker: And that compulsion only arises, prefers to this amendment, after you are compelled to answer after you have claimed the privilege.

Mr. William F. Sheehan: Well, I think in that case it -- the general rule stated in the case of United States against Monia is that the witness has to claim his privilege in the grand jury setting or else it is going to be lost to him.

I think then his failure to assert the privilege, I think if he failed in the face of the District Court order or in the face of the questions themselves to assert the privilege under the general rule that it must be asserted he would lose a privilege.

Unknown Speaker: Yes, but waiving the privilege is quite a different thing from saying there was no compulsion at all.

Which are you arguing?

Mr. William F. Sheehan: I don’t --

Unknown Speaker: Maybe I’m not -- let me give you another case.

Supposing a witness who is not even a defendant at all responds to a subpoena gets on the witness stand, they say where were you on such and such a night, and he says I would rather not tell you.

He was a friend, I don’t want to identify him because he is some personal reason and the prosecutor says you must answer your under subpoena you got to answer the question.

Is he being compelled to answer or not?

Mr. William F. Sheehan: Well, I think in that case it would be incumbent upon to -- if he wanted to keep his testimony out of a subsequent prosecution to say, I don’t want to testify because it would violate my privilege.

Unknown Speaker: No, he is not claiming privilege at all.

No self incrimination, he just does not want to testify, he does not like to talk about his friends.

Can he be compelled to answer those questions?

Mr. William F. Sheehan: Yes, I think he can be.

I think there is no doubt about it.

Unknown Speaker: With no doubt into the judge.

Cant you just say --

Mr. William F. Sheehan: I think there’s no question about it he is not being --

Unknown Speaker: So then, the compulsion arises without any reference to the judge or any reference to the privilege against self-incrimination that arises solely from the subpoena and getting on the stand --

Mr. William F. Sheehan: Oh no but he is not --

Unknown Speaker: Obeying the law and answering questions.

Mr. William F. Sheehan: No but the compulsion is that -- the compulsion takes place when he is compelled to incriminate himself when he is called to testify and he says “I don’t want to testify because I don’t want to get my friends into trouble.”

He is then stating in open Court.

I’m not being compelled to testify in violation of my privilege against self incrimination.

If it turns out later that in fact he was and he had an ulterior reason, it seems to me not unfair to insist that he stated his constitutional reason at the time he was compelled to answer.

Justice William H. Rehnquist: Well supposing a witness is asked a question by the prosecutor before the grand jury and he says I just won't answer that.

Perhaps for reasons like Justice Stevens suggested.

Now can he at that stage be prosecuted for content?

Mr. William F. Sheehan: No.

He cannot.

Justice William H. Rehnquist: Or do you have -- do you have to go before the -- do you have to go before the judging get an order compelling him to answer.

Mr. William F. Sheehan: That is my understanding.

And he would not in that case -- I think in that case he would indeed be compelled to answer if -- because the only reason he could avoid it -- well, I think in that case he would be ordered to answer by the District Court judge.

Chief Justice Warren E. Burger: The short answer might be that there is a high press to protecting your friends in that setting.

You might either be in contempt of Court or find your self charged with perjury.

Mr. William F. Sheehan: Yes, I think that’s right.

I turn now to the question whether the failure whether the failure by the Government to give a target warning on top of the Miranda warnings that were given or indeed alone automatically results in the coercion of the witness.

Certainly, if warnings regarding the privilege are not required, it seems to us they neither are target warnings because the witness cannot be more coerced by the failure to receive a target warning than he is by the failure to receive warnings regarding the privilege.

Even if some warnings are required by the privilege, it does not follow automatically that a target warning is required in addition.

If warnings of the privilege are required to be given to a potential defendant presumably the reason will be that they are necessary to overcome an inherently coercive atmosphere in the grand jury.

There is no reason to believe we think that such warnings would not by themselves be enough to dispel any inherent coerciveness that might be found to exist in the grand jury.

Justice William J. Brennan: Mr. Sheehan may I ask.

I suppose this interrogation is not a grand jury interrogation.

An FBI agent in a custodial context.

I gather at 18 1001 makes any willfully false statement in that context even though he has had Miranda warnings.

Is it not a crime punishable by $10,000.00 fine and not more than five years imprisonment under 18 USC 1001 isn’t it?

The way it leads is, in any matter within the jurisdiction of any department or agency of the United States willfully makes any false statement shall be fined not more than $10,000.00 or imprisoned not more than five years above, that’s what the statute says.

Now in that context, is it enough to give Miranda warnings or to have also to give him target warnings?

Mr. William F. Sheehan: Mr. Justice Brennan, I haven’t thought about that, I’m not sure that I can give an easy answer to it.

Justice William J. Brennan: Well, there the hypothesis is that it's a custodial interrogation of the suspect by an FBI agent who gives them Miranda warnings.

Does he also have to tell him he is a suspect?

Mr. William F. Sheehan: I think he would not have to tell him he was the suspect as well in those -- in that case, I think we --

Unknown Speaker: If then not withstanding his Miranda warning, he lies, he can be prosecuted under that statute.

Mr. William F. Sheehan: I think that’s right.

Unknown Speaker: What additional protection would it give him to tell him he was the suspect?

Being a suspect doesn’t entirely commit perjury.

And on the other hand even though you’re not a suspect your protection against compulsory self incrimination.

Mr. William F. Sheehan: Yes.

The only addition help it seems to me that the target warning gives.

Well, it seems to me that it gives no help that warnings of the privilege don’t know already give to protect against self incrimination.

The result is the same in respect of target warnings under the Due Process clause.

We think that as I suggested in the argument just passed that there is little to be gained by shifting the analysis from the self-incrimination clause to the Due Process clause.

A target warning seems to us to be conceivably helpful to the witness only insofar as it aids in the decision making process as to whether or not to invoke the privilege.

That process it seems to us is afforded all the protection to which it is entitled by the self-incrimination clause alone.

It must be assumed therefore that some values not associated with the privilege, not protected by the privilege are protected by the Due Process clause in the context of a case such as this.

We can think of none.

In most cases, the witness already knows in addition whether or not he is a potential defendant.

Indeed, he may know that far sooner than the Government will discover.

That would make an additional putative defendant warning doubly unnecessary as a matter of constitutional law.

In any event, the facts of this case certainly do not show a Due Process violation.

Before questioning the respondent in this case the grand jury -- in front of the grand jury, the attorney gave him full Miranda warnings.

The respondent knew what crime was under investigation.

The respondent knew in addition that his connection with the crime was known to the authorities by virtue of his own statements made earlier to the police and the Assistant United States Attorney.

He also knew that the explanation of his involvement was not then believed by the policeman to whom he first told it.

In these circumstances the prosecutor's failure to give him a target warning on top of full Miranda warnings, seems to us was not so fundamentally unfair as to deprive the respondent of Due Process.

Indeed, we believe it was not unfair at all and I will reserve what ever time I have left Mr. Chief Justice.

Chief Justice Warren E. Burger: Very well Mr. Sheehan.

Mr. Weisberg.

Argument of Frederick H. Weisberg

Mr. Frederick H. Weisberg: Mr. Chief Justice and may it please the Court I’m Frederick Weisberg, I’m counsel for Gregory V. Washington, the respondent in this case.

I’d like to begin by setting out what respondent's position is in this case and then the course of that state is clearly as I can what our position is not.

And then I would like to discuss briefly what I understand to be the position of the Government and why we think that position is simply unsupportable under this Court’s prior decisions.

Our position in this case is simply put that the Government may not compel an individual to incriminate himself by requiring him to testify under subpoena before grand jury that has focused on him as a target for indictment and then after he testifies and he is indicted, use against him at his criminal trial, the compelled self incriminatory testimony without demonstrating that the defendant made a voluntary knowing and intelligent waiver when he chose to testify before the grand jury.

The factual premises of that position in this case are the following.

Both prosecutors testified below in this case in effect that their purpose in subpoenaing Mr. Washington to the grand jury was to enable the grand jury to determine after hearing his testimony whether or not he should be indicted for the offense under investigation.

What they gave him was a very official looking piece of paper that commanded him to appear before the grand jury.

It was signed by the clerk of the Court in the name of the Chief Judge of the Superior Court commanding him to appear before the grand jury and answer questions in connection with an investigation into a crime of which he was suspect of having committed.

Chief Justice Warren E. Burger: Was it any different in any way from the usual subpoena to appear before the grand jury?

Mr. Frederick H. Weisberg: No Your Honor.

The practice in the District of Columbia in the grand jury section of the United States Attorney’s office is to have pre-signed subpoenas, a stack of them.

And as happened in this case, when Mr. Washington came in and asked for his his van back and the prosecutor decided this was someone he had put before the grand jury because he himself maybe implicated in this offense.

He had it in the subpoena and it’s pre-signed by the clerk Court in the name of the Chief Judge.

Unknown Speaker: Well isn’t that the fact as in almost every jurisdiction?

Mr. Frederick H. Weisberg: I’m not familiar with the other jurisdictions.

Chief Justice Warren E. Burger: I wondered why you thought that was unusual.

Mr. Frederick H. Weisberg: It is not unusual Mr. Chief Justice, the reason I’m mentioning not because it’s unusual but because Mr. Washington coming in without counsel gets a piece of paper signed by the -- in the name of the Chief Judge of the Court commanding him to appear and answer questions.

And I state that only because it’s a factual predicate for a position that there was compulsion in this case.

Chief Justice Warren E. Burger: You might get a similar piece of paper if you were called in, there is a possible witness in an automobile accident case would they not?

Mr. Frederick H. Weisberg: That’s true.

That’s absolutely correct.

Unknown Speaker: Was the subpoena returnable in the grand jury room itself or that you have to go to an Assistant US Attorney’s office?

Mr. Frederick H. Weisberg: In the grand jury room Your Honor.

Our position very simply is that Mr. Washington as the Government concedes in this case and as per the constitutional right to refuse to answer every single one of the prosecutor's questions in the grand jury relating to the motorcycle found in his van.

He could waive that rights.

We readily concede but this record does not support a finding that Mr. Washington voluntarily, knowingly, and intelligently waived his privilege against self-incrimination and two Courts below had so found.

Having stated what our position is that I want to be quick to stay what our position is now.

The issue in this case as we see it is not whether grand jury target witnesses are entitled to Miranda warnings or as the Government would prefer to put it are entitled to certain warnings on top of Miranda warnings.

We are not asking this Court to extend the prophylactic rules of the Miranda case.

We are not asking this Court in the case of grand jury target witnesses to manufacture a set of warnings.

The failure to give any one of which automatically will result in the suppression of testimony.

What we are asking this Court to recognize as it’s recognized in our view throughout the history of the Fifth Amendment privilege is that when the privilege applies as I will go on to indicate why we think it does apply in this case, it must be waived and the waiver must satisfy the requirements of a voluntary, knowing and intelligent waiver and that does not exist in this case.

And I might add in that connection that what the Court below held, What Judge Nevenka writing for the Court of Appeals held was not Mr. Washington’s testimony must be suppressed because the Government failed to give a particular warning that he thought was required by some sort of prophylactic rule, extension of the Miranda rule.

What the Court of Appeals -- as they stated the issue at the outset of our opinion and as they held, Mr. Washington did not voluntarily, knowingly and intelligently waive his privilege for among other reasons.

The fact that he had no way of knowing presumably or was certainly not told that he himself was the target of the investigation when he testified before the grand jury.

Unknown Speaker: How do you square the -- with your view the situation of the ordinary witness in a civil or criminal case where he gets on the stand and simply refuses to answer a question the judge orders him to answer it.

He never claims his privilege and he incriminates himself and that answer is offered in later in the criminal case and he claims that it was coerced from that it was compelled and his objection is overruled.

Mr. Frederick H. Weisberg: The way we answer that question Your Honor is simply this.

It is essential to our position that at the time Mr. Washington was subpoenaed --

Unknown Speaker: Let’s talk about the witness.

Mr. Frederick H. Weisberg: Okay.

Unknown Speaker: Talk about him now, why doesn’t he win with his Fifth Amendment Court?

Mr. Frederick H. Weisberg: Under certain circumstances it’s conceivable to me given the purposes for which he was subpoenaed and the Government’s knowledge at that time he would have a valid subpoena.

Unknown Speaker: Well, let’s take the ordinary civil case of automobile accident and he is called as a witness and he is asked a question and he says, I prefer not to answer it and the judge orders him to answer and he incriminates himself.

Mr. Frederick H. Weisberg: The answer to that question Your Honor the seeking --

Unknown Speaker: And because the answer is later admissible isn’t it?

Mr. Frederick H. Weisberg: The Answer to that question it seems to me Your Honor is in the Gardner opinion written by this Court last term and we relied very heavily in the Gardner opinion.

In our view ordinary witnesses are different.

I might add in a trial --

Unknown Speaker: Yeah, but in terms of the Fifth Amendment what is the explanation?

Mr. Frederick H. Weisberg: The explanation is that when the --

Unknown Speaker: Because he didn’t want to answer and the judge told him to answer or ordered him to answer and the result was he incriminated himself.

Mr. Frederick H. Weisberg: The difference is Your Honor that when the Government is seeking to avoid the burdens of the adversary system.

The very thing protected by the Fifth Amendment privilege by subpoenaing target witnesses, people who expect to be indicted.

Unknown Speaker: Let’s talk about the witness I was talking about.

Why wasn’t he --why isn’t his Fifth Amendment right infringed in the example I gave you?

Mr. Frederick H. Weisberg: Because with respect to ordinary witnesses Your Honor with respect to whom the Government has no purpose to indict.

That the cases from this Court have recognized primarily in dictum but Cordell by holding that the burden is on the witness to appraise the Government that they are encroaching on Fifth Amendment territory.

Unknown Speaker: Whether anybody could sensibly say he knew of his right or not?

Mr. Frederick H. Weisberg: That’s correct Your Honor.

Justice William H. Rehnquist: The classical definition of compelled self-incrimination is one who was ordered to answer a question over the claim of privilege.

So, when you talk about the question of waiver you are putting the cart before horse.

Mr. Frederick H. Weisberg: We don’t think so Your Honor.

In the case --

Justice William H. Rehnquist: What authority do you have from this Court for your proposition that in this type of situation you have to show annoying and intelligent waiver rather than the claim of privilege of being an element in the compulsion?

Mr. Frederick H. Weisberg: We think that the decision in Gardner which we set forth at great length in our brief is exactly the authority for that Your Honor.

When you’re dealing with someone whom the Government knows will incriminate himself by giving answers and whom it compels, in this case under subpoena to give those answers then the ordinary rule requiring a witness to put the Government on notice makes no sense.

The Government knows it's compelling incrimination.

Justice William H. Rehnquist: I thought of a due process not a Fifth Amendment.

Mr. Frederick H. Weisberg: We think this case could be decided under either provision Your Honor but I think it’s part of the self-incrimination process.

We do not view the waiver requirement as simple a prophylactic view.

If someone -- as prophylactic rule, if someone is compelled to incriminate himself and is in a situation where the Government knows in advance that the answers are likely to incriminate him and sets out to get those answers by compelling him with a subpoena to give them, then we think that the burden is on the Government to show that he waived his privilege before he answered.

We don’t think this is a Due Process case.

The Government would prefer to see this is a Due Process case and if his testimony is voluntary in traditional terms then that ends the inquiry as far as the Government is concerned.

We don’t think that’s the case here.

Now, the Government does not argue that Mr. Washington waived his privilege in the face of two holdings by both Courts below.

The Government argues instead that he was not compelled to incriminate himself.

Presumably the argument is that he had eventhough he testified under subpoena he had the right not to incriminate himself by simply saying I refused to answer on the grounds that the answer to that question may incriminate me.

I should point out here that in many cases like this and certainly in this case, we’re dealing with a witness subpoenaed to the grand jury without counsel unable to afford counsel who probably at the risk of being lived, does not even know what the word incriminate means, and the Government claims that what his burden is to understand the ins and outs of the Fifth Amendment privileges to know which questions to assert it to, which questions it doesn’t apply to and to assert it when it applies and we simply think that view ignores reality.

Chief Justice Warren E. Burger: The description of his colloquy with the police would indicate he was rather in his rights, innovative, inventive kind of a fellow.

Wouldn’t you think so?

Mr. Frederick H. Weisberg: I must say Mr. Chief Justice that --

Chief Justice Warren E. Burger: You mean, he didn’t know that he was in some on threshold possibly of some kind of trouble?

Mr. Frederick H. Weisberg: Well, no.

Simply no, he knew that there was a stolen motorcycle at that point that there was a stolen motorcycle found in the back of his van.

Chief Justice Warren E. Burger: But someone had just happened to place there?

Mr. Frederick H. Weisberg: Well, he knew how it got there.

Justice Thurgood Marshall: (Inaudible)

Mr. Frederick H. Weisberg: I have heard it so many times in my practice.

Justice Thurgood Marshall: Is there any difference at this one?

Mr. Frederick H. Weisberg: Pardon me?

Justice Thurgood Marshall: Is this one any different?

Mr. Frederick H. Weisberg: I don’t know whether it is different or not Your Honor that he was not indicted for perjury.

Everybody that he told that story to had doubts about it, but he never wavered one fact from the way it happened.

And --

Justice Thurgood Marshall: Somebody gets that.

Justice Lewis F. Powell: Mr. Weisberg.

Mr. Frederick H. Weisberg: Yes sir.

Justice Lewis F. Powell: I understand that you say you’re not interested in Miranda warnings if you want, -- must have been called target warnings.

Precisely, what in addition to the warnings that were given in this case, do you think are required?

Mr. Frederick H. Weisberg: Mr. Justice Powell in our view the focus on what he was told or what he was not told is the wrong focus.

He needed to be put in the position where his decision to testify could satisfy a Court as a voluntary, knowing and intelligent waiver of a criminal --

Justice Lewis F. Powell: What in addition do you think that prosecutor should have asked him in this case?

Mr. Frederick H. Weisberg: Whether he understood that the body that he was appearing for might indict him for a criminal offense and he might be prosecuted.

Justice Lewis F. Powell: Do you think that’s materially different from telling him that whatever he said could be used against him?

Mr. Frederick H. Weisberg: Yes, Your Honor.

There's every likelihood that Mr. Washington had no way of knowing what the Government meant when they said it could be used against him. For all he know, he would have testified later as a witness and what he said was going to be used to try to twist his story then.

He was given a subpoena by a prosecutor who indicates in the record below that he may have told him that he was needed as a witness in connection with the ongoing grand jury investigation.

For all Mr. Washington knew, when he testified, he was appearing as a witness in connection with an investigation against two other people and I might say that that’s not my own -- that is my personal view but it is not just my personal view.

Both judges, both Courts below, Judge Hand on Superior Court and Judge Nevenka for the Court of Appeals thought that warning was indispensable in this case to a voluntary knowing and intelligent waiver and both refused to find waiver in this record.

Unknown Speaker: Suppose a prosecutor in this case did not know personally that respondent was a target of the investigation but the files did show that respondent maybe a target.

What would your view be as to the requirement of the constitution?

Mr. Frederick H. Weisberg: It seems to me that there has to be some knowledge on the part of the Government that it is compelling potentially self-incriminatory testimony before our analysis is activated.

Unknown Speaker: Does that mean the prosecutor would have to exercise due care to know what the Government might know through the FBI or perhaps other officials?

Mr. Frederick H. Weisberg: I would think at a minimum that’s correct and as a practical matter, prosecutors generally know at least the outlines of --

Unknown Speaker: But perhaps not always.

Mr. Frederick H. Weisberg: It maybe that they don’t always in such a case if the Government can make a claim before a review in court that this was really an ordinary witness that they have no basis for thinking that this person would -- that they were not trying to avoid the burdens of the adversary system but by building a case against this person out of his own mouth.

Then, it seems to me our analysis might not apply.

But I heard back to the opinion you wrote last term in Gardner, Your Honor, that seems to me all of the requirements of that opinion are met here.

The Government knew exactly why it was subpoenaing Gregory Washington.

It was subpoenaing because it didn’t believe the story and it thought the grand jury might not believe his story and if they didn’t, the grand jury would indict them and they could prosecute them and use his own testimony against him.

Unknown Speaker: In Gardner the Court stated the general rule derived from Monia or how one pronounces that decision and it said there were three exceptions to it.

Which of those three do you think applies to this case?

Mr. Frederick H. Weisberg: In a sense Your Honor I think all three apply.

Unknown Speaker: Which of the three is the more relevant?

You go ahead and answer it any way you wish.

Mr. Frederick H. Weisberg: It seems to me, starting with the one that seems least like this case.

The difference between Gardner situation and Mr. Sullivan Situation and the situation of Marquette and Grosso is that the Government when it asks, when it compels Marquette and Grosso to file a tax return required only of gamblers knows that when it gets that return it has incriminating evidence of gambling which can then turn over to the States or the Federal Government for prosecution for gambling offenses.

Like the defendants in Marquette and Grosso, Mr. Washington was subpoenaed because the Government knew what his story was likely to be and that it would like be likely to make him a criminal defendant if he told it to the grand jury and they just believed it.

Like the situation in Miranda, although we don’t rely in the prophylactic aspects in Miranda.

Aside from the custody aspect of Miranda which I hope to get to in a minute, because I get is absolutely nothing to do with this case.

The other half of the Miranda decision is the focus rationale that when the police are questioning suspect, non suspects in the fact finding process, people on the street who might know something about an offense, about whom they have no reason to think are guilty of any offense.

There’s no requirement to give warnings, there’s no requirement to get a waiver and if those persons happen to incriminate themselves at some point, there would be a burden to get warnings when he became a suspect but at least the threshold statements would not be excluded under the Miranda rule.

So to hear, if Mr. Washington was subpoenaed solely because he was someone who had seen the van driver away with the motorcycle, just an ordinary witness and lo and behold, when he got in there, the Government realize for the first time that this person maybe implicated in the offense.

We think any incriminating statements made much like the ordinary witness at trial would not be protected by our analysis.

Except that it is our view that when the person began to incriminate himself in the grand jury testifying under compulsion of subpoena, the proceedings ought to stop and the prosecutor ought to then say, “you are getting yourself into trouble perhaps you ought to consult with a lawyer.”

And I’m not sure what the third is --

Unknown Speaker: You mean if the Government has a man in the grand jury room and they say “did you steal his property?”

They should stop and say by the way if you answer that question the wrong way you maybe in trouble?

Mr. Frederick H. Weisberg: No, Your Honor.

If the question after this -- if he is subpoenaed because he is suspected of having stolen the property as was true here then the Government has to do that before they even get him in the grand jury.

That’s our view.

Unknown Speaker: The fact is that in this case the prosecutor misinformed him as to his rights didn’t he?

Told him he had rights, in fact didn’t have.

He said you have the right to remain silent.

You’re not required to say anything to us in this grand jury at anytime or to answer any questions.

Now, that just was incorrect wasn’t it?

Mr. Frederick H. Weisberg: Your Honor --

Unknown Speaker: He was required to answer any questions.

Mr. Frederick H. Weisberg: He has to required to answer every question.

Unknown Speaker: So, he was misinformed, he was told that he had rights that in fact he didn’t not possess.

Mr. Frederick H. Weisberg: We have not argued in this case because it is not necessary to our position that a putative defendant in the grand jury has like a defendant in a trial, an absolute right to refuse to testify if he is in fact refuted the the defendant.

That simply is not necessary our position and so we can argue that.

I think an argument can be made based on -- in some part on Mr. Justice Rehnquist opinion in Michigan versus Tucker, the language and the opinion that just like the defendant at trial, his right to remain silent at trial could be practically nullified, if you make him go into the grand jury without counsel and defend for himself and decide which questions he think might incriminate him and which ones he think might not.

Unknown Speaker: But if this family told that he had absolute right not to answer questions or fortiori, he certainly had a right not to answer any questions it would incriminate, didn’t he?

He was over warned, he was over advised.

He was told he had rights that he didn’t have but certainly those rights would include rights that he did have.

Mr. Frederick H. Weisberg: If I understand Your Honor’s question.

That’s why I responded to Mr. Justice Powell by saying focusing on what he was told or what he was not told, it seems to me is the wrong focus.

Two courts below viewed this record, viewed this defendant and heard arguments and held that this was not a voluntary knowing and intelligent waiver and they --

Unknown Speaker: Well, he was advised he didn’t have to answer any questions, wasn’t he?

Mr. Frederick H. Weisberg: That’s correct.

Unknown Speaker: And while that was incorrect advice, that was the information he was given.

Mr. Frederick H. Weisberg: The only thing, I’m quarreling with is that means that he was over warned.

We submit he was not withstanding an under warned.

He had no way of knowing why he shouldn’t answer questions.

Unknown Speaker: Well, he was totally -- didn’t have to answer any.

Mr. Frederick H. Weisberg: That’s correct.

Justice William H. Rehnquist: He wouldn’t have to give any reason for not answering under the text of the prosecutors warning.

Unknown Speaker: Exactly.

Mr. Frederick H. Weisberg: I see.

That if he had refused to answer the questions without claiming the privilege.

Unknown Speaker: He was told he could.

He had right not to answer any questions.

Mr. Frederick H. Weisberg: Our view that contempt proceedings would have begun very quickly and the prosecutor would have told him that he misspoke himself when he said he can remain silent.

Justice Thurgood Marshall: Look at the compulsion, where is the compulsion?

Where is the compulsion?

Mr. Frederick H. Weisberg: The compulsion Your Honor, we submit --

Justice Thurgood Marshall: The man says you don’t have to answer any question.

Now where is the compulsion that he makes that statement.

Mr. Frederick H. Weisberg: Your Honor the subpoenas he gets tells -- commands him to testify and give answers.

He is then told by a prosecutor he doesn’t have to get answers not knowing without a lawyer why that advise makes any sense to him.

Justice Thurgood Marshall: But did he understand it?

Mr. Frederick H. Weisberg: He may not have understood why it made any difference to him.

Justice Thurgood Marshall: Did he understand it?

Mr. Frederick H. Weisberg: He may have understood that he --

Justice Thurgood Marshall: Didn’t have to answer any question?

Mr. Frederick H. Weisberg: He may well have understood that Your Honor.

Justice Thurgood Marshall: And once he understands, that's the end of the compulsion is it not?

Mr. Frederick H. Weisberg: Not in our view.

Justice Thurgood Marshall: Well, what is the compulsion after that?

Mr. Frederick H. Weisberg: When your under subpoena as to --

Justice Thurgood Marshall: After that.

Mr. Frederick H. Weisberg: When you’re under subpoena as a target witness.

Justice Thurgood Marshall: Well, it carries over.

Mr. Frederick H. Weisberg: Our view is that the compulsion --

Justice Thurgood Marshall: Three weeks I guess or four weeks?

Mr. Frederick H. Weisberg: It’s not a temporal thing Your Honor.

Our view is the compulsion ends when the voluntary knowing and intelligent waiver can be found and two Courts have found that it cannot be found on this record.

Unknown Speaker: Mr. Weisberg in your view is the grand jury proceeding a criminal case within the meaning of the Fifth Amendment?

Mr. Frederick H. Weisberg: The short answer to that question is yes.

The long answer is that since Counselman versus Hitchcock.

This Court has consistently held in probably a hundred --

Unknown Speaker: Well, if that’s your view and if you say he is tantamount to a defendant when he is a putative defendant.

Do you still agree with Justice Stewart that he was over warned?

Mr. Frederick H. Weisberg: I understand your question.

It is not a criminal case in the sense that a criminal trial is a criminal case.

The grand jury proceeding is -- that’s one of the problems in this case is that we think that the analogy to the criminal defendant is a very strong one.

This guy -- if he answers the questions as he did, he will be a criminal defendant the next day as soon as the grand jury hands up its indictment and is doing it without counsel.

Unknown Speaker: I understood your theory to be that he was in essence the same as the defendant because the Government had already made up its made to proceed against him and therefore, his rights before the grand jury would tantamount to his rights in open Court which were -- which would be the right to answer no questions at all.

Would the right not be in the subpoenaed -- not to be subpoenaed.

Mr. Frederick H. Weisberg: I met that as an argument by analogy Your Honor as the supporting basis for a holding that a true putative defendant before the grand jury would have a right to silence.

We do not make that argument in this case because it is unnecessary in this case.

You only have the right not to answer incriminating questions.

Like an ordinary witness except that unlike an ordinary witness when he subpoenaed because he is not an ordinary witness because he is the target that the ordinary duty to inform the Government that they are subpoenaing self incriminatory testimony is unnecessary because it makes no sense.

They already know their subpoenaing self incriminating testimony and what takes its place is a requirement that there be a voluntary knowing and intelligent waiver.

Chief Justice Warren E. Burger: At the point that Justice Stewart took you and characterized it as an over warning, he had already been told that he can have a lawyer outside the Courtroom to help him or haven’t he?

And then that continues, you have also have a right to stop answering at any time until you talk to a lawyer which again is an over warning.

He didn’t necessarily have that right.

Now, the prosecutor went on and said do you want to answer questions in reference to the stolen motorcycle that was found in your truck and he said “yes sir” and do you want a lawyer here or outside, that’s the third time now he’s is told about a lawyer and do you want a lawyer here or outside the grand jury room “no, I don’t think so.

How do you say again that he hasn’t been warned about his rights?

Mr. Frederick H. Weisberg: Your Honor, he was warned.

We agree with that much of the plurality opinion in Mandujano that says certain of the Miranda warnings are inapplicable in the grand jury context.

Our position is that Miranda fashioned warnings so that people would understand what they are giving up when they answer questions.

The warnings that are applicable in the police station are simply inapplicable in the grand jury and what he needed to be told in the grand jury was “by the way Mr. Washington, this body, whose questions you are about to answer is going to indict you, if you answer them a certain way” and you don’t have to and if you want to remain silent you have that right to do so but you should know when you testify, if you don’t remain silent, you’re targeted for indictment.

Justice Potter Stewart: Well, now, I don’t -- I know that's the argument you make and I know that’s one of the issues in this case but certainly whether or not you are targeted in an investigation doesn’t either elevate or depress your constitutional right not to be compelled to testify against yourself.

That’s true whether you are target or whether you are not a target.

Mr. Frederick H. Weisberg: I agree.

Justice Potter Stewart: And neither true or nor less true whether or not you are.

Mr. Frederick H. Weisberg: I agree.

Justice Potter Stewart: Is that correct?

Mr. Frederick H. Weisberg: I agree with that.

Justice Potter Stewart: And whether or not -- whether you are a target or not a target you don’t have any privilege to tell a lie under oath which of course is not involved here.

Mr. Frederick H. Weisberg: We agree.

Justice Potter Stewart: So why -- what’s the point, what’s the purpose of telling somebody is a target.

His constitutional right is no greater and no less whether he is a target or isn’t a target.

Mr. Frederick H. Weisberg: I would respond to that question Mr. Justice Stewart in two ways.

First, the difference between an ordinary witness and a target witness is that if the Government has no idea that this witness is in any jeopardy, that it's not compelling self-incrimination by subpoenaing him then the cases have recognized that he has to tell the Government that it's compelling self-incrimination that subpoenaed and it is duty to testify will force him to incriminate himself.

That we take out to the Gardner opinion but --

Justice William H. Rehnquist: So that’s a question that says, suppose the compulsion -- right?

Unknown Speaker: Or is it got a waiver?

Mr. Frederick H. Weisberg: We think he’s compelled by the subpoena Your Honor to answer and if he is compelled, and if he is in the category of suspects recognized in Gardner as not being required to put the Government on notice simply because the Governments already had noticed then the compulsion of the subpoena is only undone by a voluntary knowing and intelligent waiver and we think that that requirement is not merely a prophylactic rule.

This is not a Due Process voluntary in this case.

This is a privilege against self-incrimination case and when the privilege applies, it’s a constitutional right that has to be given up.

Justice William H. Rehnquist: What’s your definition of a target defendant?

Mr. Frederick H. Weisberg: We have -- again in this case not defined --

Justice William H. Rehnquist: Well, it's quite important, it would adopt the principle that you are advocating, prosecutors would have to know who were target defendants and who weren’t.

Mr. Frederick H. Weisberg: I agree.

The principle, we think is the one that emerges from the Gardner opinion.

Justice William H. Rehnquist: Well, how do you define it?

Mr. Frederick H. Weisberg: When the Government knows that the answer is that it is compelling by subpoena may incriminate that witness in the sense that the witness is a potential target for indictment and what the Government knew in this case is that the grand jury will be to believe him or it wouldn’t believe.

Justice William H. Rehnquist: When the Government say -- when the Government knows that the answer it's compelling from the witness will incriminate him?

Mr. Frederick H. Weisberg: Will incriminate him not in the sense that he is definitely just believe and definitely going to be indicted.

But in the sense that if he is disbelieved, he may well be indicted.

Justice William H. Rehnquist: Well, that’s true of any witness before a grand jury, even if he just believe he maybe indicted probably for perjury?

Mr. Frederick H. Weisberg: But in this case Your Honor, the difference is that the Government knew when it subpoenaed him, that one very likely possibility is that the grand jury would just disbelieve him and indict him and that’s why they subpoenaed him.

Justice William H. Rehnquist: What if I’m a prosecutor and I know that a potential grand jury witnesses have to lie before the grand jury.

Do I have to warn him that he is a potential perjury defendant?

Mr. Frederick H. Weisberg: I think the answer to that question is no in light of the Mandujano opinion but that maybe affected.

I have only one minute left and I would -- do I have a minute left?

I think, I have one minute left and I would like to comment very briefly and what the Government's argument really comes down do.

What it seems to be -- to me to be is that if they tell these witnesses what the constitutional rights are, some of them are going to exercise those rights and the Government is going to lose some testimony.

If what they are worried about is losing the testimony of the individual in a prosecution against that individual, our view is that that's exactly what the Fifth Amendment protects.

If what they are worried about is losing the testimony of that individual against others who may not might know about in the world of crime, our view is that it loses nothing by giving warnings because it tells the witness with effective warnings, or obtaining as we would say it a valid waiver.

Chief Justice Warren E. Burger: The question isn't whether the Government loses something.

The question is whether the constitution requires --

Mr. Frederick H. Weisberg: That’s our starting point Your Honor.

Chief Justice Warren E. Burger: Not whether it is a good idea to give warnings.

Mr. Frederick H. Weisberg: I agree completely.

Our starting point is that not the Constitution requires a warning, the Constitution requires a waiver and whatever warnings are given, a Court has to be able to say that when that person decides to testify it was the product of voluntary knowing and intelligent waiver.

But what I wanted to mention briefly is the immunity provisions which answer almost all of the Government's arguments about losing testimony against other people involved in crime.

If the person has to make a waiver and refuses to waive, the solution is simply.

I’m sorry you can’t refuse to waive, here is an immunity statute that compels you to testify despite your unwillingness to waive and they can compel that testimony.

And the only thing that can do is use that testimony against the individual whom they have compelled under the grant of immunity.

They can still prosecute the individual under the ruling in Castigar.

Chief Justice Warren E. Burger: But on your theory then, the only way you can compel testimony before a grand jury is to grant immunity to people.

Mr. Frederick H. Weisberg: Not at all Your Honor.

They can obtain a voluntary knowing and intelligent waiver.

Unknown Speaker: Suppose, before having questioned they ask -- just as after every question they ask to witness for a grand jury.

This witness, the prosecutor said “remember you don’t need to answer this question at all if you don’t want it”, secondly you don’t then furthermore you don’t need to answer they can incriminate you.

Which warning would you rather have?

Mr. Frederick H. Weisberg: Of those two?

Unknown Speaker: Yes.

Which probably would you rather have not to answer at all and not embarrass your wife, your friend, your neighbors or the latter?

Mr. Frederick H. Weisberg: If I were a suspect, it is right not to answer anything regardless of the incrimination.

Unknown Speaker: But Justice Stewart’s point isn’t it?

Mr. Frederick H. Weisberg: But two Courts below Your Honor has said that that in this case he didn’t knowingly, intelligently waive his privilege because he didn’t know that --

Unknown Speaker: What if you were in the witness chair and they -- and then prosecutor gave you both of those.

Both of those suggestions.

Now, we know we don't need to answer at all.

Now, you want to answer and you say yes.

How about that?

Mr. Frederick H. Weisberg: It seems to us Your Honor that unless this Court can conclude that that was a knowing and intelligent waiver over the holdings of two Courts below that the holdings of the two Courts below-- the Court below ought to be affirmed.

Chief Justice Warren E. Burger: Although --

Unknown Speaker: Oh, I agree with that, I agree with that but what about you?

What’s the argument that it isn’t a knowing and intelligent waiver?

Mr. Frederick H. Weisberg: That he had no basis of knowing why he shouldn’t answer those questions.

Why shouldn't he answer them, he was in no jeopardy, they want to know about the motorcycle found in his truck, it was driven by two other people.

I’ll tell them the story.

Because they are not interested in me.

Chief Justice Warren E. Burger: Very well Mr. Weisberg.

Mr. Frederick H. Weisberg: Thank you Your Honor.

Chief Justice Warren E. Burger: Do you have anything further Mr. Sheehan?

Rebuttal of William F. Sheehan

Mr. William F. Sheehan: I would like to add one point in the conclusion.

We think the issue in this case is whether the statements were voluntary.

Voluntary statements are admissible.

It was not -- this testimony was not compelled against the privilege against self-incrimination by the issuance of the subpoena alone.

That seems to me be the first question the Court has to decide, is whether the subpoena to appear coerces testimony in violation of the privilege.

If that does not as we believe it does not then the Court must decide whether or not this situation is one in which you can abandon the traditional test for voluntariness.

Was the witness's will overborne by some sort of informal coercive practices such as took place in the Miranda case.

Unknown Speaker: Mr. Sheehan may I just ask one question.

You know the over warning part of the warnings were given.

You need not answer any questions at all.

I take it that Government does not as a matter of routine give all witnesses such advise does it? Because that would mean nobody ever have to answer any questions for the grand jury?

Mr. William F. Sheehan: I think that’s probably right.

Unknown Speaker: Is it not fair inference then that if a person like this is given such a warning the Government must have had some notion intending to indict him.

Mr. William F. Sheehan: Oh, I think that there is no -- no I don’t think it is fair.

Unknown Speaker: Would there be any reason to give a warning this broad unless the person were likely defended?

Mr. William F. Sheehan: I think that there is no question but that this person was a possible defendant.

The Assistant United States Attorney who gave him these warnings had not decided in his own mind whether he would request an indictment from the grand jury in respect to this-- in respect to the respondent or not.

I mean, he was certainly aware that there was a likelihood 50% chance as far as he knew, maybe more that an indictment would follow.

Following this respondent’s testimony.

Chief Justice Warren E. Burger: Isn’t it equally and likely that this warning, over warning, was something inadvertent mistake.

This is not the standard warning that’s given to witnesses if they have a standard warning is it?

Mr. William F. Sheehan: I think that’s entirely correct Mr. Chief Justice.

I don’t think that this -- I don’t think that the Assistant United States Attorney in this case focused on this question to the extent that we are today.

Unknown Speaker: Should he testify for the hearing?

Mr. William F. Sheehan: I believe he did.

Unknown Speaker: Was he was asked why?

Mr. William F. Sheehan: No.

Chief Justice Warren E. Burger: Wasn’t any focus on the over warning?

Mr. William F. Sheehan: Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.