UNITED STATES v. WONG
Legal provision: Self-Incrimination
Argument of William F. Sheehan
Chief Justice Warren E. Burger: We’ll hear arguments next in 74-635, United States against Rose Wong.
Mr. Sheehan, I think you may proceed whenever you are 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 United States Court of Appeals for the Ninth Circuit.
That court affirmed the order of United States District Court, suppressing for use in evidence in respondent’s perjury prosecution, the testimony that she previously gave before the Grand Jury.
This case and the next one following it both involve the broad question whether the constitution requires that the government give any sort of warnings to Grand Jury witnesses when the government has reason to believe that the witness maybe indicted on the basis of the testimony that is sought from them.
This case, however, can be decided, and indeed, we think that it should be decided on a more narrow ground, for this is a perjury case and there are special policies applicable in such cases as this Court recognized last term in United States against Mandujano.
Those policies in our view apply here and they warrant a reversal without consideration of whether warnings are required.
The facts were these.
On September 7, 1973 the respondent Rose Wong appeared pursuant to a subpoena before a Grand Jury in the Northern District of California.
She was called to testify as part of the government’s investigation into gambling and bribery in the China Town section of San Francisco.
The government already had evidence that she had paid bribes to certain police officers who were cooperating with the FBI.
It was thought that she or other persons unknown to the Grand Jury might also have paid bribes to other police officers who were not cooperating with the government and it was in part to learn the identity of these other officers that she was called to testify.
When she appeared before the Grand Jury, the Grand Jury formally administered the oath and right after that, the government attorney told her what the nature of the Grand Jury investigation was and what its purpose was, that it was investigating bribery and gambling in China Town.
She was told the she had been called because it was thought the she had information that might be helpful to the government’s investigation.
At that point, the government attorney gave her a series of warnings.
She was never told that she was required to answer all the questions that were put to her.
She was told instead that she could refuse to answer any question that she felt might tend to incriminate her.
This advice was repeated twice.
She was told this was a constitutional privilege of hers.
She was asked if she understood and she said that she did.
She was then told that anything that she said could be used against her in a subsequent prosecution and she said she understood.
She was told that she had the right to consult with an Attorney before answering any questions.
She said she understood.
She was asked if she had already consulted with a Lawyer, she said she had not.
She was told that she could stop the questioning at any time that she felt necessary to do so.
She said she understood that.
Justice John Paul Stevens: Mr. Sheehan, I’m just wondering why you’re going through these specs?
Didn't the Lower Court find specifically that she did not understand and though we have to accept that as a finding for purposes of appeal?
Mr. William F. Sheehan: Well, the Lower Court found specifically that she did not understand the warnings regarding the privilege.
The Lower Court found that she did understand the warnings regarding perjury which I was about to say that she did receive.
That was explained to her that she would be liable to a prosecution for perjury.
Justice John Paul Stevens: Does the case involve any issue with respect to the adequacy of the warnings pertaining to perjury?
Mr. William F. Sheehan: No, it does not.
I go through this recitation principally because there is a due process claim here that in some manner, the government’s conduct in this particular case was offensive to notions of due process and it seems to me important that the Court --
Justice John Paul Stevens: You think it's important as to whether or not the prosecutor deliberately misled her of simply that she was misled?
Is that critical to the Due Process Act?
Mr. William F. Sheehan: Well, we think that the proper --
Justice John Paul Stevens: She did not understand is the point, I guess rather than --
Mr. William F. Sheehan: We think that the proper analysis is under the self Incrimination Clause as I will come to.
I think the government’s conduct here is really beyond reproach.
In fact, her attorney at the hearing on our motion to suppress said that he was calling the government’s conduct into question in this case.
The District Court found that the government’s conduct was not to be criticized in this case, the conduct of the government attorney and indeed, the Court of Appeals found that the government had acted in good faith.
Justice John Paul Stevens: I just didn’t quite understand the relevance of the details of the testimony.
It's only we have two very simple clear cut findings as I understood the record?
Justice Potter Stewart: Mr. Sheehan, in view of the District Court’s findings that she didn’t understand these warnings that analysis in this case has to proceed upon the premise that the situation here was tantamount to the situation that would exist if no warnings had been given.
Mr. William F. Sheehan: Yes, that is correct.
We do not contend otherwise.
Justice Potter Stewart: And that is -- so you accept that premise?
Mr. William F. Sheehan: Yes, yes.
We do not contend -- we do not contest the fining of the District Court that she was unable to understand the warnings regarding the privilege and she was then in effect in the position of one who had received no warnings.
Chief Justice Warren E. Burger: Is that the predicate for your suggestion that the case could be decided on a narrow ground?
Mr. William F. Sheehan: The predicate for our suggestion that the case can be decided on a narrow ground is because we think that it does not matter whether or not she had received warnings, effective or otherwise.
We think that this case is controlled entirely by United States against Mandujano which was decided last term.
In that case as in this case, the Court of Appeals had held that the government’s failure to advise a potential defendant of the privilege against self incrimination was a bar to the use of the witnesses’ testimony and a subsequent prosecution for perjury.
This Court reversed, although there were several opinions, all of the justices who participated agreed that whether or not warnings were required, a witness could not commit perjury and thereafter claim that the privilege self incrimination was a protection from prosecution for perjury.
And indeed, all of the justices were in agreement that on the facts of the case in Mandujano, there was no due process violation.
The facts here are in all relevant respects the same and we believe the results should be as well.
Now, although the Court of Appeals' rule that its result could not be sustained under the Self Incrimination Clause, respondent has argued that indeed, her position is supported by the Self Incrimination Clause and accordingly, I will take that matter up first.
It is well settled that that constitutional provision does not protect against the crime of perjury.
The opinions in Mandujano to that effect did not state a new doctrine.
In the Glickstein case and the Knox case and the Bryson case, this Court said that coercion may not avoided by perjury.
One central rational behind those cases applies squarely here.
In making the statements that are the subject of the indictment in this case, the respondent was not indeed incriminating herself in regard to a past crime.
She was instead committing a new crime.
However, broad the protection afforded by the privilege, it is not a license to commit perjury.
The respondent argues that this case is not the same as Mandujano, and that the use of her testimony in the prosecution for perjury would violate her privilege.
She says that it was important to the result in Mandujano that in that case, the witness had received warnings and understood warnings apparently, and that she not having understood them and having been in the position therefore of one who had not received warnings will somehow compelled against her will to lie in response to the questions put by the government attorney.
In our view, it was entirely irrelevant in Mandujano that the witness there had received warnings.
And the reason that it was irrelevant is because even if the witness had been compelled to testify in Mandujano, that would not have protected him from a prosecution for perjury.
In support of this proposition, I rely upon the cases that the Court in Mandujano relied upon.
The first of those was the Glickstein case.
There, the defendant testified under the compulsion of the statute that granted him immunity.
This Court said that as a constitutional matter, the privilege against self incrimination could be overborne and the government could compel testimony, even incriminating testimony, provided that it granted an immunity co-extensive with the privilege.
The Court then said that as a corollary to the power, to the government’s power to compel testimony, it must also have the power to assure that whatever the testimony is given in response to that compulsion would be truthful.
In that case, the statute in question was held to confer an immunity no broader than the constitution and the use of the defendant’s testimony was upheld not withstanding that he had given it under compulsion.
The Knox case and the Bryson cases are both much the same.
In Knox, the federal statute made it criminal for certain persons to fail to file a certain form.
In response to this compulsion, Knox filed a form that contained falsehoods, and he was then prosecuted under another statute forbidding false statements.
Even though under Marchetti and Grosso, under those subsequent cases, Knox would have been protected by his privilege from filing any form at all, his filing of a false form was held unprotected.
The court noted that the prosecution was not based on any incriminatory information that was given in submission to compulsion.
Neither was the prosecution in Mandujano, neither is the prosecution here.
When each of these witnesses responded to any pressure that they may have felt that they were under by giving false testimony, that as the court said in Knox was simply not testimonial compulsion.
In Bryson, the Court put the matter quite simply.
There is no privilege to answer fraudulently a question that the government should not have asked.
There is therefore no meaningful difference between this case and Knox, and Bryson and Glickstein, whether or not the witnesses in those case knew that they had a privilege was whether or not they knew that they had a privilege was not important since they cannot realistically have exercised it anyway.
Whether or not the respondent here knew that she had a privilege also did not matter.
Even assuming then that somehow, her failure to know of her privilege resulted in a situation where the government was compelling her to give answers against her will.
There is nothing in the Self Incrimination Clause that requires that her false testimony be suppressed in the prosecution for perjury.
We turn now to the Due Process Clause which was relied upon by the court below.
Justice Potter Stewart: May I just ask you this before you proceed to that point?
Am I correct in my recollection that in the Mandujano case, Mr. Mandujano was advised and informed of his constitutional privilege against compulsory self incrimination?
Mr. William F. Sheehan: You are correct.
Justice Potter Stewart: That is correct and that is --
Mr. William F. Sheehan: Yes sir, that is correct.
Justice Potter Stewart: And here, we proceed on the premise that Mrs. Wong was not?
Mr. William F. Sheehan: That’s correct.
And our position is that even though the defendant in Mandujano received warnings, whether he understood them or not, whether he received the warnings or not was entirely irrelevant to that decision which was another in a long line of cases in this Court saying that a response to compulsion by perjury is not protected by the privilege.
Now, the Court of Appeals I think agreed pretty much with so much of what I’ve just said, and they rested their result instead on the Due Process Clause.
We think that the due process analysis adds very little to the problem.
To the degree that any constitutional policies would appear to be implicated in questioning witnesses in circumstances like those here, those policies in our view are fully accounted for by the privilege.
And indeed, the court below did acknowledge as much when it said that the procedure followed here by the government was unfair because of what the court perceived as the threats that it posed to the value protected by the privilege, the values protected by the privilege.
There is a quotation from the court’s opinion at page 2a of our appendix.
Since there have been no values protected by the privilege that have been violated here, in our view, that should end the case.
But assuming that there are some values having nothing to do with the Self Incrimination Clause that are somehow implicated in this case, we submit that the government’s conduct did not violate the Due Process Clause.
We think it is not automatically unfair to call before the Grand Jury a witness whom the government has reason to believe is involved in a crime under investigation.
As this Court said in Michigan against Tucker, subject to applicable constitutional limitations, the court has not forbidden all resort to the defendant to make out its case and indeed, we find support for that proposition in the Schmerber case and the handwriting and voice exemplar cases.
It is important to the Grand Jury’s task to be able to call before it witnesses who have some knowledge of the crime.
The facts in this case are illustrative.
When the Grand Jury called the respondent to testify, so far is it knew, it was facing a wide spread system of police corruption in San Francisco.
In fulfilling its responsibilities of determining whether crimes had been committed and if so by whom, the testimony of witnesses like respondent who by virtue of their involvement in the crime are in the position to know something about it, is essential to the Grand Jury’s task.
Thus, we say that without more it could not have been a violation of due process simply to call the witness in front of the Grand Jury.
Once she appeared, as I pointed out earlier, the governments conduct was beyond reproach.
Her counsel said at the hearing on the motion to suppress, I want to make it clear that no criticism is intended here of the prosecutor who appeared before the Grand Jury.
Chief Justice Warren E. Burger: What page of the appendix was that?
Mr. William F. Sheehan: That was page 9 Mr. Chief Justice.
On the following page, the District Court said there couldn’t possibly be any question as far as the conduct of the United States Attorney is concerned and indeed, the Court of Appeals said that there was no question as to the good faith of the government.
The facts here then are quite similar to those in United States against Mandujano.
In that case, all of the justices were agreed that the government’s conduct had not violated the Due Process Clause.
We think here the government’s conduct has not violated the Due Process Clause.
Mr. Chief Justice, I’ll reserve any time I may have remaining.
Chief Justice Warren E. Burger: Very well.
Argument of Allan Brotsky
Mr. Allan Brotsky: Mr. Chief Justice and may it please the Court.
I would assume from the argument of the government that the government would concede that effective warnings concerning the Fifth Amendment privilege must be given to a putative defendant Grand Jury witness.
Although, this Court reserved that question specifically in Mandujano, I think it has to meet that issue squarely here and I think that after cases like Beckwith and Goner last term, there can hardly be any doubt that the Fifth Amendment requires that an uninformed ignorant witness, that is ignorant of the Fifth Amendment privilege, be effectively informed of his rights to decline to answer questions, the answers to which would incriminate him, or else, the Fifth Amendment would virtually be rendered meaningless before Grand Juries.
Justice Harry A. Blackmun: Well, isn’t that the issue in the next case?
Mr. Allan Brotsky: I believe it is, but I think before we can complain of what happened to Mrs. Wong, it has to be held that she had a right to be warned.
Now, whether you consider that a formula to ensure the infective enforcement of the Fifth Amendment, or a right compelled by the Fifth Amendment.
I think it must be clear to this Court by now that such effective information to an ignorant witness, subpoenaed before a Grand Jury is necessary in order that the Fifth Amendment have any meaning.
Now that being the case, I think it also important for this Court to understand that we also rely on the Due Process Clause here for our contention that the Court of Appeals must correct in affirming the order of the District Court suppressing her testimony.
Our position is that Mrs. Wong was placed in a cruel Trilemma to use the language of Murphy versus Waterfront and other cases, without knowing that she had a right to decline to answer, she had the option only of incriminating herself or of perjuring herself.
And what the Court of Appeals for the Ninth Circuit said and what the government, I think fails to understand is that very Trilemma or dilemma as it's been called, is so unfair, is so essentially wrong that it in and of itself violates due process, and this is true whether the dilemma that the witness faces is created by intentional activity on the part of the government, declining to inform witness of the privilege or whether in this case, it comes about despite what I felt was a good faith effort to do so.
In short, the dilemma, the cruelty, the unfairness does not depend on government misconduct, and I think that government misconceives the meaning of due process when it says that an essential ingredient of a violation of due process is that there must be some affirmative misconduct on the part of the government.
Chief Justice Warren E. Burger: Isn’t there possibly another choice?
Even given all of your predicates, namely, to decline to answer -- to decline to answer without attributing any reason for it, to decline to answer as an alternative to lying under oath?
Mr. Allan Brotsky: That is available to a witness that knows that that can be done, but when the prosecutor in this case asked Mrs. Wong, rather when he was asked at the hearing on the motion to suppress, what the situation was in that regard and when she was asked and he asked her, she said she thought that she had to answer every question.
Now, I would agree with you sir that if she had done that, ignorant as she was, that a chain of events would have been set in sequence that might well have resulted in her becoming educated because she would then have been subjected to the contempt part of the court.
In exerting that contempt part, the court would have appointed counsel to represent her and counsel could then have effectively informed her of her privilege, but she didn’t know she had that alternative Mr. Chief Justice.
She answered Mr. Ward when he asked her at the hearing to the effect that I thought I had to answer every question.
So in that respect, I think she had the alternative, but she did not exercise it.
Chief Justice Warren E. Burger: And the District Court elected to accept her understanding at that stage as against her understanding in the questions that appear earlier in -- for the Grand Jury?
Mr. Allan Brotsky: Her understanding at what stage sir?
Chief Justice Warren E. Burger: The scope of understanding that as he relied on her without an interpreter (Voice Overlap).
Mr. Allan Brotsky: There was an interpreter in the hearing before the District Court, clearly there was.
And her answers were given through the interpreter as well as the questions put to her with the interpreter.
Chief Justice Warren E. Burger: But your position is that the questions and answers set forth on pages 3 and 4 of the appendix are now all foreclosed because the District Court may define it which has been affirmed by the Court of Appeals?
Mr. Allan Brotsky: Yes.
I believe the case is uphold as in that position.
Now, if it is true that the violation is one of due process, then it seems to me clear that the testimony whether it’s exculpatory as was the case here or inculpatory that a self incriminatory must be suppressed.
And the reason for that I think stems from cases like Lisenba versus California where the Court pointed out that the aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false.
In short, to vindicate the violation of the due process amendment which occurred here, to correct it, to deter future instances, it is essential that whether the testimony given as the result of this dilemma, or this unfair position in which the witness is placed, be suppressed whether it exculpates or inculpates the witness.
Now in that respect, I think that there is no question that the reason --
Unknown Speaker: Red light is on.
Chief Justice Warren E. Burger: We’ll resume at 1 o’clock.
Mr. Brotsky, you may continue.
Mr. Allan Brotsky: Mr. Chief Justice and may it please the Court.
A few words I think are in order concerning the critical distinction between this case and the Mandujano case.
I think the distinction that Your Honors have recognized by denying that government’s motion for summary disposition of this case following the Mandujano opinion.
Mandujano was aware of his privilege.
He could have claimed his privilege as the Chief Justice pointed out in the plurality opinion.
Having that ability, he did not do so.
Chief Justice Warren E. Burger: But we have no occasion to decide in that case whether any warning was required, did we?
Mr. Allan Brotsky: That’s correct.
Chief Justice Warren E. Burger: Because it is clearly given on the record?
Mr. Allan Brotsky: Correct.
So in Mandujano, there was no either dilemma or Trilemma.
There was no subjecting of the witness to this unfair cruel, if you will, situation.
Justice William H. Rehnquist: Mr. Brotsky, in connection with your due process argument, would you think that a warning as to other privileges other than the self incrimination privilege might be required, say such as the Attorney/Client privilege?
Mr. Allan Brotsky: I personally think that such a warning is equally, perhaps not equally but it is essential as well.
I think that if you warn of the -- or advice of the Fifth Amendment privilege because of the intricacies of the privilege, it would be appropriate and consistent with the purposes of the amendment and particularly to avoid distinctions between those who can afford counsel and those who cannot.
Justice William H. Rehnquist: If your due process argument stands on the separate ground from the privilege, it pretty well has to include any privilege that might be availed of, isn’t it?
Mr. Allan Brotsky: I think so.
I think, however, that I should say this.
This is an illustration of how one violation is inextricably linked with another.
The right to be advised of the privilege flows from the self incrimination aspect of the Fifth Amendment, but it is the failure to advice that brings into play the due process violation because only where there is a failure to advice, do you have this dilemma.
So, I would say then that when a witness, a putative of defendant witness comes before a Grand Jury and he is not advised, effectively informed of the privilege, you have a violation of the Fifth Amendment self incrimination right.
That violation, once you ask a question and subject the witness to the dilemma or Trilemma that we’re talking about, then becomes a violation of due process.
Justice Byron R. White: Do you think the same analysis would apply when witness the government does not expect it might indict?
Mr. Allan Brotsky: No.
I think that --
Justice Byron R. White: But why not?
I thought you really weren't relying on the conduct of the government?
Mr. Allan Brotsky: I think I am distinguishing Mr. Justice White between the conduct of the government and the objective reality which the government has before it.
In this case, --
Justice Byron R. White: Well, what about the ordinary witness that the government doesn’t really know about, but they just call him as a witness, but as a matter of fact, he does have some problems about self incrimination, and he is not advised or warned and he’s asked some questions.
And here in his own mind, his choices either to refuse to answer, to incriminate himself or to perjure himself?
That’s the way it is as a matter of fact?
Mr. Allan Brotsky: I think that I would have to answer you with what Mr. Justice Brennan said in the Mandujano case.
That presents the most difficult situation, but I don’t think we have to reach that here at all.
I think we can define what we mean by a putative defendant in terms of what the government knows when it calls the witness.
Justice Byron R. White: So, you do -- so you think there is a substantial dimension to your case based on the government’s conduct, namely, its knowledge and its calling him as the witness and not informing him clearly?
Mr. Allan Brotsky: Yes.
I think that is an ingredient, an essential ingredient of our case.
Justice William J. Brennan: Mr. Brotsky, precisely what do you think the witness should have been told?
What was the information of that the witness should have been told?
Mr. Allan Brotsky: I think, she should have been told either through an interpreter or in language that would have effectively told her that she had a right to decline to answer questions based on her Fifth Amendment privilege.
Now, did she -- how could he bit -- excuse me, done that?
Justice William J. Brennan: Nothing more than that, in other words, you do not suggest that she should have been told that maybe a possibility that this Grand Jury is going to indict her?
Mr. Allan Brotsky: Let me leave that to the case that follows Mr. Justice Brennan.
I don’t think I have to reach it in this case and I had rather not be philosophical.
I am concerned about Rose Wong, and as a matter of academic interest, yes, I believe that more than that is required.
As a matter of fact, I personally believe and concur with your position that knowing and intelligent waiver of an informed -- by an informed defendant is essential of way to preserve Fifth Amendment values, but that doesn’t arise in this case.
Chief Justice Warren E. Burger: I take it then you are equating this as a parallel to the Miranda type of situation?
Mr. Allan Brotsky: Only in this respect Mr. Chief Justice.
I agree completely that the Grand Jury setting is different, wholly different from the custodial interrogation of the police.
Chief Justice Warren E. Burger: I didn’t mean as to the setting.
I mean, as to the concept of the right and the waiver aspect?
Mr. Allan Brotsky: Yes, I think that without reaching the waiver problem because it isn’t presented here, I think that the coercion inherent in custodial interrogation which forces -- which compels the suspect to talk is assumed before the Grand Jury.
When you’re subpoenaed before the Grand Jury, you must talk, you got to answer every question.
As the Mandujano makes very plain and as it reminds us, this has been the rule since this court was founded.
Chief Justice Warren E. Burger: That Mandujano also said -- the court said in Mandujano that the oath itself is a warning, isn’t that, didn't the court not say that?
Mr. Allan Brotsky: Yes and frankly --
Chief Justice Warren E. Burger: Now, in the Miranda setting, there is no oath and there is no anticipation one way or the other that the subject will tell the truth or tell falsehood, is there?
Mr. Allan Brotsky: That’s right.
Chief Justice Warren E. Burger: And the person in the Miranda setting could tell falsehoods without perhaps becoming incriminated, certainly not in a perjury sense, could they?
Mr. Allan Brotsky: That’s right.
But Miranda also teaches Mr. Chief Justice that whether the statements made following the failure to observe the Miranda ritual, whether exculpatory or inculpatory may not be used.
Now, I would agree with you that the oath makes a substantial difference in the sense that the witness, had the witness been informed with no that perjury was -- the oath itself is adequate warning that they must tell the truth.
But the difference between -- Mrs. Wong situation and Mandujano situation was that he knew he could decline to answer and she did not.
She had no other alternative than to either incriminate herself or perjure herself.
To either exculpate her or inculpate herself.
Justice Thurgood Marshall: Mr. Brotsky, was she a pauper?
Mr. Allan Brotsky: She is not a pauper.
Justice Thurgood Marshall: She was when she was called?
Mr. Allan Brotsky: Well, I can’t say that.
She did not have an attorney when she was called and when she retained me, she paid a modest fee.
Justice Thurgood Marshall: What significance is it if a person who was not a pauper, does not have a lawyer?
Mr. Allan Brotsky: I think that --
Justice Thurgood Marshall: What is the significance?
Mr. Allan Brotsky: The significance --
Justice Thurgood Marshall: If a person can hire a lawyer and doesn’t hire one, then who’s to be blamed for that?
Mr. Allan Brotsky: I think that may well be true.
On the other hand as I said, until you’re informed of your privilege under the Fifth Amendment, you are in a position of having to answer incriminatory questions and, that’s a situation of Mrs. Wong.
Justice Thurgood Marshall: (Inaudible) advice of counsel?
Mr. Allan Brotsky: You could.
There’s no doubt that --
Justice Thurgood Marshall: (Inaudible)
Mr. Allan Brotsky: That’s right and perhaps it could be said that she could be criticized for not having consulted an Attorney before going to the Grand Jury.
Chief Justice Warren E. Burger: Is there anything to be said at all Mr. Brotsky for the notion that any citizen, any person called before an official body, even without understanding as you argue there was a lack of understanding here, should understand that they must tell the truth, if they -- in terms of whatever they tell?
Mr. Allan Brotsky: No question about that.
The thing that I think, this Court has to confront is whether when the choice is between the truth or incriminating one self, or as in this case since she did come from China Town and since there is a tradition in China Town that informers are physically retaliated against, she had even more of a subjective reason to fear inculpatory statements.
She feared physical harm to herself or her family.
There is no question Mr. Chief Justice that it is essential that people tell the truth.
But, I don’t think that our constitution fails to distinguish between those who knowing of their rights, knowing they can keep quite, then deliberately tell falsehoods and those who have no such option, I think there is a real distinction.
Chief Justice Warren E. Burger: That argument would carry greater weight perhaps if you were talking about a person testifying in public, in the trial of the case.
Here the testimony was in secrecy of the Grand Jury room which is protected?
Mr. Allan Brotsky: Of course, had she told the prosecuting Attorney what he wanted to hear, she would inevitably have been called.
His purpose was to find out what she knew so that he could utilize her testimony in a trial against the officers that he claimed --
Chief Justice Warren E. Burger: But when you say what the prosecutor wanted to hear, you mean that he was seeking to have her say that she had indeed bribed the policemen?
Mr. Allan Brotsky: That’s correct.
That’s what he wanted.
Chief Justice Warren E. Burger: And that that would expose her to retaliations, is that your suggestion?
Mr. Allan Brotsky: I think that this was a subject factor, but I don’t think it’s necessary to the decision in this case.
I think the dilemma of course is simply by incriminating one self versus perjuring one self is sufficiently unfair dilemma to call into play the due process guarantee.
Now, I just want to make a few more points.
As I say, there is this connection between the Fifth Amendment privilege against self incrimination and the due process violation.
Now, when the witness is affectively not informed and you have both violations, then the question arises what is the remedy?
I think the remedy and here again you have a distinction between the situation posed by Knox, by Bryson where you did not have this dilemma in the same sense.
Where in Bryson’s case, he could have resigned as an officer or declined to answer, he knew of his privilege; Mrs. Wong did not know of hers.
I think the appropriate remedy is to restore the witness to the position, the witness would have been in, had the witness known of the privilege and exercise that namely to suppress all the testimony whether it’s exculpatory.
Justice Byron R. White: Again, these arguments put almost any witness rather than just one who is a putative defendant?
Mr. Allan Brotsky: I don’t think so Mr. Justice White for this reason.
Justice Byron R. White: It doesn’t as a matter of fact, the answers might incriminate?
Mr. Allan Brotsky: If the answers might incriminate, then I think you are reaching the point where that is true.
Justice Byron R. White: Whether the government knows it or not?
Mr. Allan Brotsky: Alright, I agree you’re posing the most difficult question, administratively and philosophically, but that’s not the problem we have in this case.
Justice Byron R. White: Can ordinary witness called than an ordinary -- in any lawsuit or in any criminal case in an open court room?
Mr. Allan Brotsky: No doubt about it, but I know that as a practical matter and in real life things don’t happen that way.
The U.S. Attorney generally knows whether the witness that he’s calling, generally knows.
Justice Byron R. White: He hopes he does?
Mr. Allan Brotsky: Alright, I agree.
But I think that this is not the situation we have here nor is it necessary to decide that question because you have clearly here a putative defendant.
The finding was to that effect and certainly the government has not denied it.
Chief Justice Warren E. Burger: Going back to Justice White’s illustration which we eluded to in the Mandujano opinions, you’re not suggesting that a warning is required if a person is called in out of the cold to come in to the court room and testify?
Mr. Allan Brotsky: No.
Chief Justice Warren E. Burger: Civil case, criminal case, whatever?
Mr. Allan Brotsky: I am not --
Chief Justice Warren E. Burger: Are they not confronted often with the precisely the same dilemma or Trilemma that you mentioned here, retaliation, indictment, what not?
Mr. Allan Brotsky: No, I don’t think so.
I think --
Chief Justice Warren E. Burger: They could not be?
Mr. Allan Brotsky: It’s possible.
But, we are talking probabilities now.
Chief Justice Warren E. Burger: We’re only dealing with the rare cases.
Those are the only ones that come up here, you got the rare case?
Justice Byron R. White: What about the government, who thinks that co-conspirators would testify against somebody who’s on trial, and they call him, put him on the stand?
Mr. Allan Brotsky: Usually, that person has an attorney to represent them or the attorney for the defendant will make sure they do.
Justice Byron R. White: All I’m asking is whether you think that government has to warn them?
Mr. Allan Brotsky: I would say that --
Justice Byron R. White: They know, you say implicated?
Mr. Allan Brotsky: I would say wherever there is ignorance, wherever there’s reason with ground --
Justice Byron R. White: So, your answer is yes.
The same rule would apply as you are dealing with this case?
Mr. Allan Brotsky: No, it’s not yes.
It’s only if the situation is one in which the government knows there is ignorance or has reasonable cause to believe there is ignorance.
For example, if the person shows up with an attorney, obviously, there is no cost to believe that the witness is ignorant.
We are talking about ignorance here, that’s really what I think we’re addressing ourselves to because while Mr. Justice --
Justice John Paul Stevens: Mr. Brotsky, if you put it on the government ignorance, they were ignorant here as the fact that she didn’t understand the warning?
Mr. Allan Brotsky: I understand that.
Justice John Paul Stevens: But then haven’t you give them your case solely?
Mr. Allan Brotsky: No, I am talking about ignorance on the part of the witness.
If you have a situation where the witness is in fact ignorant, now when must the government do it?
I think if you think of the situation here, clearly the government has to do it here, where they know that the witness, according to the police officers has offered bribes, paid bribes is implicated in the gambling establishment.
And where they call her precisely to implicate her self and others, clearly then it seems to me you have to have a warning to that kind of witness.
Now, this other cases are harder.
There is no question about that, but in this case, you don’t have those difficult problems.
Justice John Paul Stevens: What Mr. Justice White was asking you supposing at the same facts about Mrs. Wong that she were called in a trial of Mr. X, why is it the same situation?
Mr. Allan Brotsky: Well, if that’s what Mr. Justice White meant, then I misunderstood.
If the government has no knowledge that the witness is involved (Voice Overlap)
Justice John Paul Stevens: No, no, no.
Mr. Allan Brotsky: Oh, I think that the government would have to.
Yes, I think that government would have to advice that --
Justice John Paul Stevens: Even though she is not a putative defendant?
Mr. Allan Brotsky: That’s right.
I think --
Justice Byron R. White: And the government calls a co-conspirator or someone who thinks that on their side of the case to prove a case against the defendant, you must give him the warning?
Mr. Allan Brotsky: Well --
Justice Byron R. White: The government is frankly surprised.
They think they are going to get some testimony out of somebody that certain line of some and it turns out they don’t get it and let’s assume they then prosecute him for perjury?
Mr. Allan Brotsky: Alright.
Justice Byron R. White: You think it’s because they thought they suspected and/or thought they knew he was implicated in the crime that they had to give him warnings, that they cannot prosecute him for perjury?
Mr. Allan Brotsky: No, I don’t think so.
I think that had they given them -- first, my reply would be what harm does it do to the government to give the warnings?
Justice Byron R. White: But the question is whether it’s constitutionally required (Voice Overlap)
Mr. Allan Brotsky: I understand.
I think the government is giving the very warnings here that we’re talking about.
They haven’t told us why they do it, but they uniformally do it.
I think it’s because they recognize that it is essentially unfair not to.
Now, if you have a situation you postulated, then, I think the government has an equal duty where the government knows that the person is implicated and calls that person with an intent and design to extract incriminatory information, and I think the government should advise the person of that person’s rights.
In a minute or two that I have left, I do want to say something about the perjury question.
I think this Court does have and must have a legitimate concern that perjury violations be punished.
But I think again here, there is a difference between the kind of perjury you have where one is aware of the privilege and instead of exercising it, remaining silent, affirmatively misstates or lies.
To suppress false testimony that is induced by a cruel dilemma, and that’s what I think happened here is, not the licensed perjury.
Justice William H. Rehnquist: Well, you are not just talking about suppressing false testimony.
You are talking about washing out what would otherwise be a perjury charge, aren’t you?
Mr. Allan Brotsky: That’s right, but I am saying, you are merely restoring that person to the position they would be in had they known of the privilege.
Justice William H. Rehnquist: Before they lied?
Mr. Allan Brotsky: That’s right, had Mrs. Wong, I can assure this Court that had Mrs. Wong known of her privilege, she would have exercised it.
She would have given no answers to the questions which are the subject to the perjury prosecution.
What I’m saying therefore is that if that is the case and if she faced the dilemma she did, I think this Court’s legitimate concern for perjury is not appropriately addressed to her situation.
I think to as a Court of Appeals said, to suppress testimony which in this case exculpated her and which the prosecutor thereby then promptly indicted her for perjury because it was contrary to the information he had for her to do that.
Justice John Paul Stevens: M. Brotsky, how can you be so positive that she would not committed perjury if she knew of her privilege?
Lots of people know their privilege and still decide it would be better not to act guilty by claiming the privilege and it would try and get away with a false story and how do we know she didn’t simply do that?
Mr. Allan Brotsky: Mr. Justice Stevens, if you knew Rose Wong, you would be sure as I am.
Justice John Paul Stevens: Well, we would not be able to deal with, but there is no reason on the record to believe that’s the fact, isn’t it, to say (Voice Overlap)?
Mr. Allan Brotsky: I don’t see how they could on the record, I don’t see how they could.
As a matter of fact in the hearing, there was a question that the judge raised, now the final question would be if she had known of her privilege which he has claimed it and he didn’t ask it because I think he assumed after seeing Mrs. Wong that should would have --
Justice Thurgood Marshall: Mr. Brotsky, if she had been called to the regular trial and these policemen had asked those questions, would somebody been advised -- would have to advise her of her rights?
Mr. Allan Brotsky: I think so.
Justice Thurgood Marshall: Why?
Mr. Allan Brotsky: Because I think the government knowing that, it is eliciting from her by its questions, incriminatory answers is fording the purposes of the Fifth Amendment and is taking our system of justice and ignoring the mandate of the Fifth Amendment when one does so.
I think that --
Justice Thurgood Marshall: I thought the Fifth Amendment was something you had to claim?
Mr. Allan Brotsky: If you know about it.
I think ignorance of the Fifth Amendment which is the situation here presents an entirely --
Justice Thurgood Marshall: Do you think that court would have to appoint a lawyer’s for her?
Mr. Allan Brotsky: I didn’t hear you.
Justice Thurgood Marshall: You think the court would have to appoint to a lawyer to advise her?
Mr. Allan Brotsky: I think if the government new the questions were -- Yes, I think I she were indigent --
Justice Thurgood Marshall: Even if she had a million dollars.
Mr. Allan Brotsky: No, no.
Justice Thurgood Marshall: She wasn’t an indigent.
She said she wasn’t.
Mr. Allan Brotsky: No, well, I’m saying that --
Justice Thurgood Marshall: You said she was.
Mr. Allan Brotsky: That they have to advise her.
I am not saying that they have --
Justice Thurgood Marshall: Why would they have to advise a person capable of hiring a lawyer to advising her of her rights?
Mr. Allan Brotsky: Because I don’t think that the fact that she was an indigent really is relevant here since when she appeared, she was given the option of having an Attorney.
Justice Thurgood Marshall: And she could have then said, I’d like to get one?
Mr. Allan Brotsky: I suppose that’s true.
But in any event, what happened is --
Justice Thurgood Marshall: Well, did she understand that question?
Mr. Allan Brotsky: The judge indicated she did not.
Judge Zirpoly said -- found in effect that she did not understand, none advising her of her rights except to perjury.
Chief Justice Warren E. Burger: Now that we’re on the Court’s time, let me ask you one question and try to give a brief answer.
What was there at the second hearing, at the suppression here which alerted someone to the idea that she did not understand English in the face of the perfectly clear unequivocal answers which she gave before the Grand Jury.
What was the change, after a long lapse of time that her English became little fuzzy or what?
Mr. Allan Brotsky: Mr. Chief Justice, I think you may have misconceived what happened at the second hearing.
We made a motion to suppress based on the claim the she did not understand the warnings.
Chief Justice Warren E. Burger: Like everyone concedes that there was nothing to have alerted to the Grand Jury foreman or the United States Attorney to the notion that she did not understand the questions when she gave the rather clear answers which appear in the record on pages 3 and 4.
Now, what alerted someone between that time and the hearing on the suppression motion to the idea that she did not understand English quite a well?
Mr. Allan Brotsky: When she came to me and talked to me, I could see that she didn’t understand English very well.
I had a different view than the United States Attorney.
I immediately -- I have more familiarity with China Town, San Francisco than he did, and he admitted in the record that he had no such familiarity.
The Judge pointed out at the hearing that there was several times when she answered questions that might well have alerted him that she needed an interpreter.
Chief Justice Warren E. Burger: Very well, thank you.
Mr. Allan Brotsky: Thank you.
Chief Justice Warren E. Burger: You have anything further Mr. Sheehan?
Rebuttal of William F. Sheehan
Mr. William F. Sheehan: I do not Mr. Chief Justice.
Chief Justice Warren E. Burger: Very well, thank you gentlemen.
The case is submitted.