NEW JERSEY V. PORTASH, 440 U. S. 450 (1979)

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U.S. Supreme Court

New Jersey v. Portash, 440 U.S. 450 (1979)

New Jersey v. Portash

No. 77-1489

Argued December 5, 1978

Decided March 20, 1979

440 U.S. 450


Respondent municipal official testified before a state grand jury under immunity granted pursuant to a New Jersey statute preventing a public employee's grand jury testimony or evidence derived therefrom from being used against him in a subsequent criminal proceeding. Thereafter, respondent was charged with misconduct in office and extortion, and, at his trial, the judge ruled that respondent's grand jury testimony could be used to impeach his credibility if he testified. As a result of this ruling, respondent did not testify, and he was ultimately convicted. The New Jersey appellate court held that the use of the immunized grand jury testimony to impeach respondent would have violated the Constitution, and, because respondent's decision not to testify was based on the trial court's erroneous ruling to the contrary, reversed the conviction and remanded for a new trial.

Held: Under the Fifth Amendment privilege against compulsory self-incrimination made binding on the States by the Fourteenth Amendment, respondent's testimony before the grand jury under a grant of immunity could not constitutionally be used against him in the later criminal trial. Pp. 440 U. S. 453-460.

(a) That respondent did not take the witness stand does not render the constitutional question abstract and hypothetical. It appears from the record that the trial judge did rule on the merits of such question, and the appellate court necessarily concluded that such question had been properly presented, because it ruled in respondent's favor on the merits. Moreover, there is nothing in federal law to prohibit New Jersey from following such a procedure, nor, so long as Art. III's "case or controversy" requirement is met, to foreclose this Court's consideration of the constitutional issue now that the New Jersey courts have decided it. Pp. 440 U. S. 454-456.

(b) Testimony given in response to a grant of legislative immunity is the essence of coerced testimony and involves the constitutional privilege against compulsory self-incrimination in its most pristine form. Thus, any balancing of interests so as to take into account the interest in preventing perjury is not only unnecessary, but impermissible. Harris v. New York, 401 U. S. 222, and Oregon v. Hass, 420 U. S. 714, distinguished. Pp. 440 U. S. 456-460.

151 N.J.Super. 200, 376 A.2d 950, affirmed.

Page 440 U. S. 451

STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 440 U. S. 460. POWELL, J., filed a concurring opinion, in which REHNQUIST, J., joined, post, p. 440 U. S. 462. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J.,joined, post, p. 440 U. S. 463.

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