UNITED STATES v. MANDUJANO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Argued November 5, 1975.
Decided May 19, 1976.
As a result of certain information concerning respondent's participation in an attempted sale of heroin, he was subpoenaed to testify before a grand jury investigating narcotics traffic in the area. The prosecutor warned him that he was not required to answer any questions that might incriminate him, that all other questions had to be answered truthfully or else he would be subject to a charge of perjury, and that if he desired a lawyer he could have one but that the lawyer could not be inside the grand jury room. Subsequently, respondent was charged with perjury for admittedly false statements made to the grand jury about his involvement in the attempted heroin sale. The District Court granted respondent's motion to suppress his grand jury testimony because he was not given the warnings called for by Miranda v. Arizona, 384 U.S. 436 , holding that respondent was a "putative" or "virtual" defendant when called before the grand jury and therefore entitled to full Miranda warnings. The Court of Appeals affirmed. Held: The judgment is reversed and the case is remanded. Pp. 571-584; 584-609; 609.
496 F.2d 1050, reversed and remanded.
Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General Bork, Acting Assistant Attorney General Keeney, and Shirley Baccus-Lobel.
MR. CHIEF JUSTICE BURGER announced the judgment of the Court in an opinion in which MR. JUSTICE WHITE, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join.
This case presents the question whether the warnings called for by Miranda v. Arizona, 384 U.S. 436 (1966), must be given to a grand jury witness who is called to testify about criminal activities in which he may have been personally involved; and whether, absent such warnings, false statements made to the grand jury must be suppressed in a prosecution for perjury based on those statements.
During the course of a grand jury investigation into narcotics traffic in San Antonio, Tex., federal prosecutors assigned to the Drug Enforcement Administration Task Force learned of an undercover narcotics officer's encounter with respondent in March 1973. At that time, the agent had received information that respondent, who was employed as a bartender at a local tavern, was dealing in narcotics. The agent, accompanied by an informant, met respondent at the tavern and talked for several hours. During the meeting, respondent agreed to obtain heroin for the agent, and to that end placed several phone calls from the bar. He also requested and received $650 from the agent to make the purchase. Respondent left the tavern with the money so advanced to secure the heroin. However, an hour later respondent returned to the bar without the narcotics and returned the agent's money. Respondent instructed the agent to telephone him at the bar that evening to make arrangements for the transaction. The agent tried but was unable to contact respondent as directed. The record provides no explanation for respondent's failure to keep his appointment. No further action was taken by the agent, and the investigatory file on the matter [425 U.S. 564, 567] was closed. The agent did, however, report the information to federal prosecutors. At that time, the Government was seeking information on local drug traffic to present to a special grand jury investigating illicit traffic in the area.
Respondent was subpoenaed to testify before the grand jury on May 2, 1973; this was approximately six weeks after the abortive narcotics transaction at the tavern where respondent was employed. When called into the grand jury room and after preliminary statements, the following colloquy occurred between the prosecutor and respondent:
Respondent specifically disclaimed having discussed the sale of heroin with anyone during the preceding year and stated that he would not even try to purchase an ounce of heroin for $650. Respondent refused to amplify on his testimony when directly confronted by the prosecutor:
The Court of Appeals affirmed. 496 F.2d 1050 (CA5 1974). It recognized that certain warnings had in fact been given to respondent at the outset of his grand jury appearance. But the court agreed with the District Court that "full Miranda warnings should have been accorded Mandujano who was in the position of a virtual or putative defendant." Id., at 1052. The essence of the Court of Appeals' holding is:
We agree with the views expressed by Judge Rives in Orta, supra, and disagree with the Court of Appeals in the instant case; accordingly, we reverse.
The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty; notwithstanding periodic criticism, much of which is superficial, overlooking relevant history, the grand jury continues to function as a barrier to reckless or unfounded charges. "Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice." Costello v. United States, 350 U.S. 359, 362 (1956). Its historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.
Earlier we noted that the law vests the grand jury with substantial powers, because "[t]he grand jury's investigative power must be broad if its public responsibility is adequately to be discharged." United States v. Calandra, 414 U.S. 338, 344 (1974); Branzburg v. Hayes, 408 U.S. 665, 700 (1972). Indispensable to the exercise of its power is the authority to compel the attendance and the testimony of witnesses, Kastigar v. United States, 406 U.S. 441, 443 (1972), and to require the production of evidence, United States v. White, 322 U.S. 694 (1944). [425 U.S. 564, 572]
When called by the grand jury, witnesses are thus legally bound to give testimony. Calandra, supra, at 343. This principle has long been recognized. In United States v. Burr, 25 F. Cas. 38 (No. 14,692e) (CC Va. 1807), Mr. Chief Justice Marshall drew on English precedents, aptly described by Lord Chancellor Hardwicke in the 18th century, and long accepted in America as a hornbook proposition: "The public has a right to every man's evidence." This Court has repeatedly invoked this fundamental proposition when dealing with the powers of the grand jury. United States v. Nixon, 418 U.S. 683, 709 (1974); Branzburg v. Hayes, supra, at 688; Kastigar v. United States, supra, at 443; United States v. Monia, 317 U.S. 424, 432 (1943) (Frankfurter, J., dissenting).
The grand jury's authority to compel testimony is not, of course, without limits. The same Amendment that establishes the grand jury also guarantees that "no person . . . shall be compelled in any criminal case to be a witness against himself . . . ." The duty to give evidence to a grand jury is therefore conditional; every person owes society his testimony, unless some recognized privilege is asserted.
Under settled principles, the Fifth Amendment does not confer an absolute right to decline to respond in a grand jury inquiry; the privilege does not negate the duty to testify but simply conditions that duty. The privilege cannot, for example, be asserted by a witness to protect others from possible criminal prosecution. Rogers v. United States, 340 U.S. 367 (1951); United States v. Murdock, 284 U.S. 141 (1931); Hale v. Henkel, 201 U.S. 43 (1906). Nor can it be invoked simply to protect the witness' interest in privacy. "Ordinarily, of course, a witness has no right of privacy before the grand jury." Calandra, supra, at 353. [425 U.S. 564, 573]
The very availability of the Fifth Amendment privilege to grand jury witnesses, recognized by this Court in Counselman v. Hitchcock, 142 U.S. 547 (1892), suggests that occasions will often arise when potentially incriminating questions will be asked in the ordinary course of the jury's investigation. Probing questions to all types of witnesses is the stuff that grand jury investigations are made of; the grand jury's mission is, after all, to determine whether to make a presentment or return an indictment. "The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes." Costello v. United States, supra, at 362.
It is in keeping with the grand jury's historic function as a shield against arbitrary accusations to call before it persons suspected of criminal activity, so that the investigation can be complete. This is true whether the grand jury embarks upon an inquiry focused upon individuals suspected of wrongdoing, or is directed at persons suspected of no misconduct but who may be able to provide links in a chain of evidence relating to criminal conduct of others, or is centered upon broader problems of concern to society. It is entirely appropriate - indeed imperative - to summon individuals who may be able to illuminate the shadowy precincts of corruption and crime. Since the subject matter of the inquiry is crime, and often organized, systematic crime - as is true with drug traffic - it is unrealistic to assume that all of the witnesses capable of providing useful information will be pristine pillars of the community untainted by criminality.
The Court has never ignored this reality of law enforcement. Speaking for the Court in Kastigar v. United States, MR. JUSTICE POWELL said:
There is nothing new about the Court's recognition of this reality of grand jury inquiries. In one of the early cases dealing with the Fifth Amendment privilege, the Court observed: "[I]t is only from the mouths of those having knowledge of the [unlawful conduct] that the facts can be ascertained." Brown v. Walker, 161 U.S. 591, 610 (1896).
Accordingly, the witness, though possibly engaged in some criminal enterprise, can be required to answer before a grand jury, so long as there is no compulsion to answer questions that are self-incriminating; the witness can, of course, stand on the privilege, assured that its protection "is as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, 142 U.S., at 562 . The witness must invoke the privilege, however, as the "Constitution does not forbid the asking of criminative questions." United States v. Monia, 317 U.S., at 433 (Frankfurter, J., dissenting).
The stage is therefore set when the question is asked. If the witness interposes his privilege, the grand jury has two choices. If the desired testimony is of marginal value, the grand jury can pursue other avenues of inquiry; if the testimony is thought sufficiently important, the grand jury can seek a judicial determination as to the bona fides of the witness' Fifth Amendment claim, Malloy v. Hogan, 378 U.S. 1, 11 -12 (1964); Hoffman v. United States, 341 U.S. 479, 486 -487 (1951), in which case the witness must satisfy the presiding judge that the claim of privilege is not a subterfuge. If in fact "`there is reasonable ground to apprehend danger to the witness from his being compelled to answer,'" Brown v. Walker, supra, at 599, the prosecutor must then determine whether the answer is of such overriding importance as to justify a grant of immunity to the witness.
If immunity is sought by the prosecutor and granted by the presiding judge, the witness can then be compelled to answer, on pain of contempt, even though the testimony would implicate the witness in criminal activity. The reason for this is not hard to divine; Mr. Justice Frankfurter indicated as much in observing that immunity is the quid pro quo for securing an answer from the witness: "Immunity displaces the danger." Ullmann v. United States, 350 U.S. 422, 439 (1956); see also Piemonte v. United States, 367 U.S. 556, 560 (1961). Based on this recognition, federal [425 U.S. 564, 576] statutes conferring immunity on witnesses in federal judicial proceedings, including grand jury investigations, are so familiar that they have become part of our "`constitutional fabric.'" Lefkowitz v. Turley, 414 U.S. 70, 81 -82 (1973); Ullmann v. United States, supra, at 438. Immunity is the Government's ultimate tool for securing testimony that otherwise would be protected; unless immunity is conferred, however, testimony may be suppressed, along with its fruits, if it is compelled over an appropriate claim of privilege. United States v. Blue, 384 U.S. 251, 255 (1966). On the other hand, when granted immunity, a witness once again owes the obligation imposed upon all citizens - the duty to give testimony - since immunity substitutes for the privilege.
In this constitutional process of securing a witness' testimony, perjury simply has no place whatever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is - and even the solemnity of the oath - cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it. 3 [425 U.S. 564, 577]
Similarly, our cases have consistently - indeed without exception - allowed sanctions for false statements or perjury; they have done so even in instances where the perjurer complained that the Government exceeded its constitutional powers in making the inquiry. See, e. g., United States v. Knox, 396 U.S. 77 (1969); Bryson v. United States, 396 U.S. 64 (1969); Dennis v. United States, 384 U.S. 855 (1966); Kay v. United States, 303 U.S. 1 (1938); United States v. Kapp, 302 U.S. 214 (1937).
In Bryson, a union officer was required by federal labor law to file an affidavit averring that he was not a Communist. The affidavit was false in material statements. In a collateral attack on his conviction, Bryson argued that since the statute required him either to incriminate himself or lie, he could not lawfully be imprisoned for failure to comply. This Court rejected the contention:
In this case, the Court of Appeals required the suppression of perjured testimony given by respondent, as a witness under oath, lawfully summoned before an investigative grand jury and questioned about matters directly related to the grand jury's inquiry. The court reached this result because the prosecutor failed to give Miranda warnings at the outset of Mandujano's interrogation. Those warnings were required, in the Court of Appeals' view, because Mandujano was a "virtual" or "putative" defendant - that is, the prosecutor had specific information concerning Mandujano's participation in an attempted sale of heroin and the focus of the grand jury interrogation, as evidenced by the prosecutor's questions, centered on Mandujano's involvement in narcotics traffic. The fundamental error of the prosecutor, in the court's view, was to treat respondent in such a way as to "`smack' of entrapment"; as a consequence, the court concluded that "elemental fairness" required the perjured [425 U.S. 564, 579] testimony to be suppressed. 496 F.2d, at 1058, and n. 8.
The court's analysis, premised upon the prosecutor's failure to give Miranda warnings, erroneously applied the standards fashioned by this Court in Miranda. Those warnings 4 were aimed at the evils seen by the Court as endemic to police interrogation of a person in custody. 5 Miranda addressed extrajudicial confessions or admissions procured in a hostile, unfamiliar environment which lacked procedural safeguards. The decision expressly rested on the privilege against compulsory self-incrimination; the prescribed warnings sought to negate the "compulsion" thought to be inherent in police station interrogation. But the Miranda Court simply did not perceive judicial inquiries and custodial interrogation as equivalents: "[T]he compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery." 384 U.S., at 461 .
The Court thus recognized that many official investigations, [425 U.S. 564, 580] such as grand jury questioning, take place in a setting wholly different from custodial police interrogation. Indeed, the Court's opinion in Miranda reveals a focus on what was seen by the Court as police "coercion" derived from "factual studies [relating to] police violence and the `third degree' . . . physical brutality - beating, hanging, whipping - and to sustained and protracted questioning incommunicado in order to extort confessions. . . ." Id., at 445-446. To extend these concepts to questioning before a grand jury inquiring into criminal activity under the guidance of a judge is an extravagant expansion never remotely contemplated by this Court in Miranda; the dynamics of constitutional interpretation do not compel constant extension of every doctrine announced by the Court.
The marked contrasts between a grand jury investigation and custodial interrogation have been commented on by the Court from time to time. MR. JUSTICE MARSHALL observed that the broad coercive powers of a grand jury are justified, because "in contrast to the police - it is not likely that [the grand jury] will abuse those powers." United States v. Mara, 410 U.S. 19, 46 (1973) (dissenting opinion). See also In re Groban, 352 U.S. 330, 347 (1957) (Black, J., dissenting).
The warnings volunteered by the prosecutor to respondent in this case were more than sufficient to inform him of his rights - and his responsibilities - and particularly of the consequences of perjury. To extend the concepts of Miranda, as contemplated by the Court of Appeals, would require that the witness be told that there was an absolute right to silence, and obviously any such warning would be incorrect, for there is no such right before a grand jury. Under Miranda, a person in police custody has, of course, an absolute right to decline [425 U.S. 564, 581] to answer any question, incriminating or innocuous, see Michigan v. Mosley, 423 U.S. 96 (1975), whereas a grand jury witness, on the contrary, has an absolute duty to answer all questions, subject only to a valid Fifth Amendment claim. And even when the grand jury witness asserts the privilege, questioning need not cease, except as to the particular subject to which the privilege has been addressed. Cf. id., at 103-104. Other lines of inquiry may properly be pursued.
Respondent was also informed that if he desired he could have the assistance of counsel, but that counsel could not be inside the grand jury room. That statement was plainly a correct recital of the law. No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play. Kirby v. Illinois, 406 U.S. 682 (1972). A witness "before a grand jury cannot insist, as a matter of constitutional right, on being represented by his counsel . . . ." In re Groban, supra, at 333. 6 Under settled principles the witness may not insist upon the presence of his attorney in the grand jury room. Fed. Rule Crim. Proc. 6 (d).
Respondent, by way of further explanation, was also warned that he could be prosecuted for perjury if he testified falsely. Since respondent was already under oath to testify truthfully, this explanation was redundant; it served simply to emphasize the obligation already imposed by the oath.
Similarly, a witness subpoenaed to testify before a petit jury and placed under oath has never been entitled to a warning that, if he violates the solemn oath to "tell the truth," he may be subject to a prosecution for perjury, for the oath itself is the warning. Nor has any case been cited to us holding that the absence of such warnings before a petit jury provides a shield against use of false testimony in a subsequent prosecution for perjury or in contempt proceedings. 7
In any event, a witness sworn to tell the truth before a duly constituted grand jury will not be heard to call for suppression of false statements made to that jury, any more than would be the case with false testimony before a petit jury or other duly constituted tribunal. 8 [425 U.S. 564, 583] In another context, this Court has refused to permit a witness to protect perjured testimony by proving a Miranda violation. In Harris v. New York, 401 U.S. 222 (1971), the Court held that notwithstanding a Miranda violation:
The fact that here the grand jury interrogation had focused on some of respondent's specific activities does not require that these important principles be jettisoned; nothing remotely akin to "entrapment" or abuse of process is suggested by what occurred here. Cf. Brown v. United States, 245 F.2d 549 (CA8 1957). Assuming, arguendo, that respondent was indeed a "putative defendant," that fact would have no bearing on the validity of a conviction for testifying falsely.
The grand jury was appropriately concerned about the sources of narcotics in the San Antonio area. The attempted [425 U.S. 564, 584] heroin sale by respondent provided ample reason to believe that he had knowledge about local heroin suppliers. It was, therefore, entirely proper to question him with respect to his knowledge of narcotics trafficking. 9 Respondent was free at every stage to interpose his constitutional privilege against self-incrimination, but perjury was not a permissible option. As the Tenth Circuit has held, the law provides "other methods for challenging the government's right to ask questions." United States v. Pommerening, 500 F.2d 92, 100 (1974).
The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.
[ Footnote 2 ] Respondent was subsequently tried and convicted under Count I of the indictment for attempting to distribute heroin. The grand jury testimony was not utilized by the prosecution at that trial.
[ Footnote 3 ] Congress' view was expressed in the legislative history of the statute relating to false declarations before a grand jury or court, 18 U.S.C. 1623:
[ Footnote 4 ] "At the outset, if a person in [police] custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. . . .
. . . . .
[ Footnote 5 ] Id., at 444 n. 4.
[ Footnote 6 ] The right to counsel mandated by Miranda was fashioned to secure the suspect's Fifth Amendment privilege in a setting thought inherently coercive. The Sixth Amendment was not implicated.
[ Footnote 7 ] The fact that warnings were provided in this case to advise respondent of his Fifth Amendment privilege makes it unnecessary to consider whether any warning is required, as the Government asks us to determine. In addition to the warning implicit in the oath, federal prosecutors apparently make it a practice to inform a witness of the privilege before questioning begins.
[ Footnote 8 ] Masinia v. United States, 296 F.2d 871, 877 (CA8 1961). Cases voiding convictions for perjury involved situations where the investigatory body was acting outside its lawful authority. Brown v. United States, 245 F.2d 549 (CA8 1957); United States v. Thayer, 214 F. Supp. 929 (Colo. 1963); United States v. Cross, 170 F. Supp. 303 (DC 1959); United States v. Icardi, 140 F. Supp. 383 (DC 1956). For example, in Brown v. United States, supra, the Court of Appeals concluded that a federal grand jury in Nebraska had undertaken a "roving commission," investigating matters outside its lawful power. The District Court in that case had concluded that the grand jury's activities had come "`perilously close to being a fraud on the jurisdiction of this Court.'" Quoted in 245 [425 U.S. 564, 583] F.2d, at 553. No such circumstances are presented by this case. We therefore have no occasion to address the correctness of the results reached by the courts in these inapposite instances.
[ Footnote 9 ] This is not to suggest that the questioning would have been improper if the principal aim of the grand jury's investigation had centered upon respondent's activities, rather than a general investigation into local narcotics traffic. As previously indicated, no impropriety results from summoning the target of its inquiry, United States v. Dionisio, 410 U.S. 1, 10 n. 8 (1973); it is appropriate, in fact, to give that individual an opportunity to explain potentially damaging information before the grand jury decides whether to return an indictment.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in the judgment.
I concur in the judgment of the Court, for "even when the privilege against self-incrimination permits an individual to refuse to answer questions asked by the Government, if false answers are given the individual may be prosecuted for making false statements." Mackey v. United States, 401 U.S. 667, 705 (1971) (BRENNAN, J., concurring in judgment). Although the [425 U.S. 564, 585] Fifth Amendment guaranteed respondent the right to refuse to answer the potentially incriminating questions put to him before the grand jury, in answering falsely he took "a course that the Fifth Amendment gave him no privilege to take." United States v. Knox, 396 U.S. 77, 82 (1969). "Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them." Bryson v. United States, 396 U.S. 64, 72 (1969) (footnote omitted). See also Glickstein v. United States, 222 U.S. 139, 142 (1911). Further, the record satisfies me that the respondent's false answers were not induced by governmental tactics or procedures so inherently unfair under all the circumstances as to constitute a prosecution for perjury a violation of the Due Process Clause of the Fifth Amendment. 1
However, two aspects of the plurality opinion suggest a denigration of the privilege against self-incrimination and the right to the assistance of counsel with which I do not agree.
The plurality opinion, ante, at 574-575, mechanically quotes United States v. Monia, 317 U.S. 424 (1943), for the proposition:
This Court has consistently emphasized and, more importantly, has stood fast to ensure the essential premise underlying our entire system of criminal justice that "ours is an accusatorial and not an inquisitorial system - a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth." Rogers v. Richmond, 365 U.S. 534, 541 (1961). 5 Numerous opinions express the Court's determination [425 U.S. 564, 588] to enforce the guarantee of an adversary system embodied in our Bill of Rights in the face of attempts, in the name of expediency and in ignorance of the lessons of history, to utilize inquisitional procedures. And the successful maintenance of the adversary system when threatened by these sometimes blatant but often more subtle assaults has had as a core underpinning the vigilance of this Court in jealously guarding the right of every person not to be compelled to be a witness against himself. E. g., Watts v. Indiana, 338 U.S. 49 (1949); Blackburn v. Alabama, 361 U.S. 199 (1960); Culombe v. Connecticut, 367 U.S. 568 (1961); Malloy v. Hogan, supra; Miranda v. Arizona, 384 U.S. 436 (1966); Garrity v. New Jersey, 385 U.S. 493 (1967); Lefkowitz v. Turley, 414 U.S. 70 (1973). The Fifth Amendment privilege, the "essential mainstay of our adversary system," Miranda v. Arizona, supra, at 460, "registers an important advance in the development of our liberty - `one of the great landmarks in man's struggle to make himself civilized.'" [425 U.S. 564, 589] Ullmann v. United States, 350 U.S. 422, 426 (1956).
The institution of the grand jury - an institution mandated by the Fifth Amendment and "deeply rooted in Anglo-American history," United States v. Calandra, 414 U.S. 338, 342 (1974) - has historically also served as a bulwark for the individual citizen against use by officials of the powers of the Government in ways inconsistent with our notions of fundamental liberty. "[T]he Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by [425 U.S. 564, 590] `a presentment or indictment of a Grand Jury.'" Id., at 343. "The basic purpose . . . was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes." Costello v. United States, 350 U.S. 359, 362 (1956). It is no less clear, however, that the grand jury, as with all institutions of Government, is subject to the fundamental restraints which guarantee our liberty, including the Fifth Amendment privilege against self-incrimination. Counselman v. Hitchcock, 142 U.S. 547 (1892). And in delineating the scope and operation of the Fifth Amendment privilege necessary to secure its fundamental policies in the grand jury context, we must note that the nature of the grand jury is, of course, primarily inquisitional rather than adversary: the grand jury is "a grand inquest, . . . with powers of investigation and inquisition." Blair v. United States, 250 U.S. 273, 282 (1919). Given this characterizing principle, we are alerted to the danger that in the absence of a subtle and flexible mode of constitutional analysis - an analysis certainly not illustrated in the Monia dictum - the fundamentals of the Fifth Amendment privilege may be subverted by talismanic invocation of the role of the grand jury in our constitutional system. A more discriminating analysis is fully in keeping with the historic role of this Court, for, as said by Mr. Chief Justice Marshall in the identical context of conflict between the role of the grand jury and the Fifth Amendment privilege: "When two principles come in a conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent." United States v. Burr, 25 F. Cas. 38, 39 (No. 14,692e) (CC Va. 1807). 6 Close [425 U.S. 564, 591] scrutiny and attention to competing constitutional policies is required in this area of conflicting principles if the "Court [is] zealous[ly] to safeguard the values that underlie the privilege." Kastigar v. United States, 406 U.S. 441, 445 (1972).
In my view, the conception of the Fifth Amendment privilege expressed in the Monia dictum is explainable only by reference to the facts and circumstances of the only case cited in support by Monia - United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103 (1927). That case involved questions concerning the Fifth Amendment privilege in a deportation proceeding. In holding that the prospective deportee's privilege against compulsory self-incrimination had not been violated in the circumstances, the Court rested on the failure to assert any claim of privilege in the proceeding. Id., at 113. Essential to the Court's holding was the observation:
This view of the nature and scope of the Fifth Amendment privilege was reaffirmed by the Court this very Term:
It is clear that the government may not in the absence of an intentional and knowing waiver call an indicted defendant before a grand jury and there interrogate him concerning the subject matter of a crime for which he already stands formally charged. Lawn v. United States, 355 U.S. 339 (1958); United States v. Calandra, 414 U.S., at 345 , 346. The Fifth Amendment requires suppression of any statements of the accused that were so obtained. 10 True, as noted ante, at 573-574, calling a person "who may himself be the subject of the grand jury inquiry" is not a violation per se of the Fifth Amendment. United States v. Dionisio, 410 U.S. 1, 10 n. 8 (1973). This general proposition may be justified as necessary to the basic policy that the public has a right to every man's evidence, United States v. Nixon, 418 U.S. 683, 709 (1974), but in my view it must yield in situations risking vast potential for abuse in the absence of further safeguards calculated to preserve the policies underlying our adversary system.
It cannot be gainsaid that prosecutors often do call before grand juries persons suspected of criminal activity to testify concerning that activity, e. g., Grunewald v. [425 U.S. 564, 595] United States, 353 U.S. 391, 423 (1957), and the availability of this device has often been fatally tempting to those aware of its potential for abuse. 11 There can be no doubt that sanctioning unfettered discretion in prosecutors to delay the seeking of criminal indictments pending the calling of criminal suspects before grand juries to be interrogated under conditions of judicial compulsion runs the grave risk of allowing "the prosecution [to] evade its own constitutional restrictions on its powers by turning the grand jury into its agent." United States v. Mara, 410 U.S. 19, 29 (1973) (Douglas, J., dissenting). 12 In such situations an individual's only protection against the mobilized power of the State is his Fifth Amendment privilege, but it is a protection of which there must be safeguards to make him aware. Careful measures are needed if the privilege is "still [to stand] guard when so much is attempted by inquisition, however subtle, at any stage of the [criminal] proceedings." Wood v. United States, 75 U.S. App. D.C. 274, 288, 128 F.2d 265, 279 (1942) (per Rutledge, J.).
Given the prosecutor's authority to choose the precise timing of a criminal indictment, it is not surprising that commentary uniformly decries the attempted distinction between a de facto and de jure defendant in the determination [425 U.S. 564, 596] of the amount of protection accorded by the Fifth Amendment privilege.
Even more serious, the use by prosecutors of the tactic of calling a putative defendant before a grand jury and interrogating him regarding the transactions [425 U.S. 564, 597] and events for which he is about to be indicted is, in the absence of an "intentional relinquishment or abandonment" of his "known" privilege against compulsory self-incrimination, Schneckloth v. Bustamonte, 412 U.S. 218, 235 (1973); Johnson v. Zerbst, 304 U.S. 458, 464 (1938), a blatant subversion of the fundamental adversary principle - that the State "establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation." Watts v. Indiana, 338 U.S., at 54 . Where such prosecutorial tactics are employed, it borders on the absurd to say, as is said in justification of the Monia dictum, that the "government . . . may assume that its compulsory processes are not eliciting" incriminating information, Garner, 424 U.S., at 655 . Rather, it is clear beyond question that the government is "acutely aware of the potentially incriminatory nature of the disclosures sought," id., at 657, and thus one cannot avoid the conclusion that in condoning resort to such tactics, the courts become partners in "undermin[ing]" the "adversary system of criminal justice" by allowing prosecutors "deliberately [to seek] to avoid the burdens of independent investigation by compelling self-incriminating disclosures." Id., at 655-656. Such tactics by prosecutors are exemplars of the very evils sought to be prevented by the enshrinement of the Fifth Amendment privilege in the Constitution. 14 In giving those tactics our stamp of approval we turn our backs on our recognition [425 U.S. 564, 598] heretofore that it is crucial that courts "be `alert to repress' any abuses of the investigatory power invoked, bearing in mind that . . . `the most valuable function of the grand jury . . . [has been] not only to examine into the commission of crimes, but to stand between the prosecutor and the accused.'" Hoffman v. United States, 341 U.S. 479, 485 (1951), quoting Hale v. Henkel, 201 U.S. 43, 65 (1906). "[A] defendant's right not to be compelled to testify against himself at his own trial might be practically nullified if the prosecution could previously have required him to give evidence against himself before a grand jury." Michigan v. Tucker, 417 U.S. 433, 441 (1974).
Thus, I would hold that, in the absence of an intentional and intelligent waiver by the individual of his known right to be free from compulsory self-incrimination, the Government may not call before a grand jury one whom it has probable cause - as measured by an objective standard 15 - to suspect of committing a crime, and by use of judicial compulsion compel him to testify with [425 U.S. 564, 599] regard to that crime. 16 In the absence of such a waiver, the Fifth Amendment requires that any testimony obtained in this fashion be unavailable to the Government [425 U.S. 564, 600] for use at trial. Such a waiver could readily be demonstrated by proof that the individual was warned prior to questioning that he is currently subject to possible criminal prosecution for the commission of a stated crime, that he has a constitutional right to refuse to answer any and all questions that may tend to incriminate him, and by record evidence that the individual understood the nature of his situation and privilege prior to giving testimony.
A second and also disturbing facet of the plurality opinion today is its statement that "[n]o criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play." Ante, at 581. It will not do simply to cite, as does the plurality opinion, Kirby v. Illinois, 406 U.S. 682 (1972), for this proposition. Kirby's premise, so fundamental that it was "note[d] at the outset," was that "the constitutional privilege against compulsory self-incrimination is in no way implicated here." Id., at 687. In sharp contrast, the privilege against compulsory self-incrimination is inextricably involved in this case since a putative defendant is called and interrogated before a grand [425 U.S. 564, 603] jury. Clearly in such a case a defendant is "faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." Id., at 689.
It is true that dictum in In re Groban, 352 U.S. 330, 333 (1957), denied there is any constitutional right of a witness to be represented by counsel when testifying before a grand jury. But neither Groban nor any other case in this Court has squarely presented the question. 19 Moreover, more recent decisions, e. g., Miranda v. Arizona, 384 U.S. 436 (1966), and Escobedo v. Illinois, 378 U.S. 478 (1964), recognizing the "substantive affinity" and therefore the "coextensive[ness]" in certain circumstances of the right to counsel and the privilege against compulsory self-incrimination, Wood v. United States, 75 U.S. App. D.C., at 280, 128 F.2d, at 271 (per Rutledge, J.), have led many to question the continuing vitality of such older dicta. 20
Accepted principles require scrutiny of any situation wherein a right to the assistance of counsel is claimed by "analyz[ing] whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." [425 U.S. 564, 604] United States v. Wade, 388 U.S. 218, 227 (1967); Coleman v. Alabama, 399 U.S. 1, 7 (1970). And the question of whether the guidance of counsel is ordinarily required to enable an individual effectively to avoid prejudice to his Fifth Amendment privilege was clearly answered by this Court last Term.
It may be that a putative defendant's Fifth Amendment privilege will be adequately preserved by a procedure whereby, in addition to warnings, he is told that he has a right to consult with an attorney prior to questioning, that if he cannot afford an attorney one will be appointed for him, that during the questioning he may have that attorney wait outside the grand jury room, and that he may at any and all times during questioning consult with the attorney prior to answering any question posed. See United States v. Capaldo, 402 F.2d 821, 824 (CA2 1968), cert. denied, 394 U.S. 989 (1969); United States v. Pepe, 367 F. Supp. 1365, 1369 (Conn. 1973). 22 [425 U.S. 564, 606] At least if such minimal protections were present, a putative defendant would be able to consult with counsel prior to answering any question that he might in any way suspect may incriminate him. Thereafter, if the privilege is invoked and contested, a hearing on the propriety of its invocation will take place in open court before an impartial judicial officer, and the putative defendant will there have his counsel present. Harris v. United States, 382 U.S. 162, 166 n. 4 (1965); In re Oliver, 333 U.S. 257 (1948); United States v. Pepe, supra, at 1369. If the invocation of the privilege is disallowed, the putative defendant will then have the opportunity to answer the question posed prior to the imposition of sanctions for contempt. Garner v. United States, 424 U.S., at 663 .
There is clearly no argument that a procedure allowing a putative defendant called to testify before a grand jury to consult at will with counsel outside the grand jury room prior to answering any given question would in any way impermissibly "delay and disrupt grand jury proceedings." United States v. Calandra, 414 U.S., at 349 . This is clearly manifested by the plethora of reported instances in which just such procedures have been followed. 23 Nor would such a procedure damage [425 U.S. 564, 607] the constitutional "role and functions of the grand jury," ibid., for the only effect on its investigative function is to secure a putative defendant's Fifth Amendment privilege and thereby avoid subversion of the adversary system. 24
It is, of course, unnecessary in this case to define the exact dimensions of the right to counsel since the testimony obtained by the grand jury interrogation was not [425 U.S. 564, 608] introduced as evidence at respondent's trial on the charge concerning which he was questioned. I write only to make plain my disagreement with the implication in the plurality opinion that constitutional rights to counsel are not involved in a grand jury proceeding, and my disagreement with the further implication that there is a right to have counsel present for consultation outside the grand jury room but that it is not constitutionally derived and therefore may be enjoyed only by those wealthy enough to hire a lawyer. 25 I cannot accede to a return to the regime of "squalid discrimination," Griffin v. Illinois, 351 U.S. 12, 24 (1956) (Frankfurter, J., concurring in judgment), where the justice "a man gets depends on the amount of money he has." Id., at 19 (opinion of Black, J.). Only recently THE CHIEF JUSTICE reminded us of "the basic command that justice be applied equally to all persons," and further that "the passage of time has heightened rather than weakened the attempts [by this Court] to mitigate the disparate treatment of indigents in the criminal process." Williams v. Illinois, 399 U.S. 235, 241 (1970). See Argersinger v. Hamlin, 407 U.S. 25 (1972); Tate v. Short, 401 U.S. 395 (1971); Miranda v. Arizona, 384 U.S. 436 (1966); Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas v. California, 372 U.S. 353 (1963); Griffin v. Illinois, supra. If indeed there is, as the plurality opinion says, a right to have counsel present outside the door to the grand jury room, it is [425 U.S. 564, 609] most assuredly in my view everyone's right, regardless of economic circumstance.
[ Footnote 1 ] Of course, whether the allegations concerning prosecutorial misconduct complained of by respondent in his motion to suppress contain "the seeds of a `duress' defense, or perhaps whether his false statement[s were] not made `willfully' as required by [18 U.S.C. 1623], . . . must be determined initially at his trial." United States v. Knox, 396 U.S. 77, 83 (1969). Nothing in the plurality opinion forecloses respondent from raising such defenses at his trial.
[ Footnote 2 ] In Vajtauer, the only issue decided was the permissibility of using a prospective deportee's silence in a deportation proceeding as evidence against him where it was claimed that answers to the questions put might subject him to criminal penalties under state law. The Court clearly was skeptical of the "afterthought" assertion of the possibility of self-incrimination, 273 U.S., at 113 , and, for reasons discussed, infra, at 591-592, properly concluded that in the circumstances there presented, the petitioner was obliged to put the immigration authorities on notice before he might assert the self-incrimination claim to defeat the evidentiary effect of his silence.
[ Footnote 3 ] For example, we have often said the Fifth Amendment prerequisite to the admissibility of an accused's statements is that they must have been "`free and voluntary: that is, [they] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.'" Bram v. United States, 168 U.S. 532, 542 -543 (1897); Malloy v. Hogan, 378 U.S., at 7 . "In other words the person must not have been compelled to incriminate himself. We have held inadmissible even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow [425 U.S. 564, 587] a suspect to call his wife before he confessed." Ibid. "In sum, the privilege is fulfilled only when the person is guaranteed the right `to remain silent unless he chooses to speak in the unfettered exercise of his own will.'" Miranda v. Arizona, 384 U.S. 436, 460 (1966). Furthermore, "the Court has evaluated the knowing and intelligent nature of the waiver [under the `intentional relinquishment or abandonment of a known right or privilege' standard of Johnson v. Zerbst, 304 U.S. 458, 464 (1938)] . . . of the privilege against compulsory self-incrimination before an administrative agency or a congressional committee." Schneckloth v. Bustamonte, 412 U.S. 218, 238 (1973) (footnote omitted).
[ Footnote 4 ] Reference to the Monia dictum is also dictum in this case for, as the plurality notes, ante, at 569 n. 2, respondent's testimony before the grand jury was not utilized by the prosecution at respondent's trial on the substantive count of attempted distribution of heroin.
[ Footnote 5 ] "Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice [425 U.S. 564, 588] since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. See Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America, 48 Harv. L. Rev. 433, 457-458, 467-473 (1935). Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation. `The law will not suffer a prisoner to be made the deluded instrument of his own conviction.' 2 Hawkins, Pleas of the Crown, c. 46, 34 (8th ed., 1824). The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever from of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights - these are all characteristics of the accusatorial system and manifestations of its demands." Watts v. Indiana, 338 U.S. 49, 54 (1949).
[ Footnote 6 ] Only "[t]hrough the consistently liberal construction it has been afforded by the Supreme Court [has] the privilege . . . been the [425 U.S. 564, 591] firmest limitation upon inquisitorial power in the grand jury." Rief, The Grand Jury Witness and Compulsory Testimony Legislation, 10 Am. Crim. L. Rev. 829, 852 (1972).
[ Footnote 7 ] When the grand jury exercises its judicial power to compel the attendance and testimony of witnesses, it is, of course, exhibiting a classic instance of judicial compulsion; that very phenomenon against which the central meaning of the Fifth Amendment privilege is to confer on every citizen an absolute right to refuse testimony which may subject him to criminal prosecution. Meshbesher, Right to Counsel Before Grand Jury, 41 F. R. D. 189, 198-199 (1966). As Mr. Justice Rutledge said when sitting on the Court of Appeals for the District of Columbia Circuit:
[ Footnote 8 ] See also United States v. Monia, 317 U.S., at 439 -440, 442 (Frankfurter, J., dissenting); United States v. Scully, 225 F.2d 113, 118 (CA2), cert. denied, 350 U.S. 897 (1955) (Frank, J., concurring in result).
[ Footnote 10 ] Although there may be some ambiguity in the opinion in Lawn v. United States as to whether the multiple references to "tainted" evidence were based on the legal conclusion that the evidence, having been obtained by calling indicted defendants before a grand jury, was obtained in violation of the Fifth Amendment privilege, later decisions resolved any doubt on this score. United States v. Calandra, 414 U.S., at 345 , 346.
[ Footnote 11 ] E. g., Hooley v. United States, 209 F.2d 234, 235 (CA1 1954); United States v. Pepe, 367 F. Supp. 1365, 1367, 1370 (Conn. 1973); United States v. Garnes, 156 F. Supp. 467, 469 (SDNY 1957), aff'd, 258 F.2d 530 (CA2 1958), cert. denied, 359 U.S. 937 (1959).
[ Footnote 12 ] Federal prosecutors, it has been asserted, have also taken advantage of the de facto/de jure distinction to postpone indictments and thereby utilize the subpoena power of the grand jury to obtain discovery in evasion of the strictures on Government discovery pursuant to Fed. Rule Crim. Proc. 16(c). Tigar & Levy, The Grand Jury as the New Inquisition, 50 Mich. St. B. J. 693, 700 (1971).
[ Footnote 13 ] See also Boudin, The Federal Grand Jury, 61 Geo. L. J. 1, 3 (1972); Dash, The Indicting Grand Jury: A Critical Stage?, 10 Am. Crim. L. Rev. 807, 809-810 (1972); Meshbesher, supra, n. 7, at 190; Note, The Rights of a Witness Before a Grand Jury, 1967 Duke L. J. 97; Note, Self-Incrimination Before a Federal Grand Jury, 45 Iowa L. Rev. 564, 571 (1960); Comment, The Grand Jury Witness' Privilege Against Self-Incrimination, 62 Nw. L. Rev. 207, 223 (1967).
[ Footnote 14 ] "[I]t was historically this situation [the preliminary inquisition of one not yet charged with an offense] which gave rise to the privilege. The system of `inquisition,' properly so called, signifies an examination on mere suspicion, without prior presentment, indictment, or other formal accusation . . .; and the contest for one hundred years centered solely on the abuse of such a system." 8 J. Wigmore, Evidence 2251, p. 295 n. 1 (McNaughton rev. 1961).
[ Footnote 15 ] Others have argued for a rule which would combine objective elements with the prosecutor's subjective intent subsequently to charge the individual by indictment. See United States v. Scully, 225 F.2d, at 117 (Frank, J., concurring in result). But this subjective-intent requirement may pose grave administrative difficulties, see United States v. Grossman, 154 F. Supp. 813, 817 (NJ 1957), whereas the purely objective standard is easily manageable both for the prosecutor at the point of decision to call an individual suspect before the grand jury, and for the reviewing court. Clearly it costs the prosecutor nothing in terms of constitutionally permissible criteria to resolve any doubts in favor of warning the witness. I would at present leave open the proper answer to the case of a witness called to testify in the absence of probable cause, but whose testimony thereafter develops a case of probable cause.
[ Footnote 16 ] Cf. United States v. Wong, 553 F.2d 576 (CA9 1974), cert. pending, No. 74-635 (Miranda warnings required for putative defendant); United States v. Washington, 328 A. 2d 98, 100 (Ct. App. DC 1974), cert. pending, Nos. 74-1106, 74-6579 (requiring a knowing and intelligent waiver of the privilege by a "potential" defendant); United States v. Luxenberg, 374 F.2d 241, 246 (CA6 1967) (warning concerning the privilege required for one "virtually in the position of a defendant"); United States v. Orta, 253 F.2d 312, 314 (CA5). cert. denied, 357 U.S. 905 (1958) (knowing and intelligent waiver of privilege required for "a witness"); Stanley v. United States, 245 F.2d 427, 434 (CA6 1957) (protection afforded a defendant in custody extended to witnesses "virtually in the position of a defendant"); United States v. Pepe, 367 F. Supp., at 1369 (warning required for a "potential" defendant); In re Kelly, 350 F. Supp. 1198, 1205 (ED Ark. 1972) (warning required if "even a remote possibility of prosecution"); United States v. Kreps, 349 F. Supp. 1049, 1053-1054 (WD Wis. 1972) (Miranda warnings required for "prime suspect"); United States v. Fruchtman, 282 F. Supp. 534, 536 (ND Ohio 1968) (warning required for one "`virtually in the position of a defendant'"); Mattox v. Carson, 295 F. Supp. 1054, 1059 (MD Fla. 1969) (Miranda warnings required for "potential defendants"), rev'd on other grounds, 424 F.2d 202 (CA5), cert. denied, 400 U.S. 822 (1970); United States v. Haim, 218 F. Supp. 922, 932 (SDNY 1963) (warning required for "potential" defendant); United States v. DiGrazia, 213 F. Supp. 232, 234 (ND Ill. 1963) (warning and execution of formal waiver required for any witness); United States v. Grossman, supra, at 816 (warning required at least for "target" defendant). See also Powell v. United States, 96 U.S. App. D.C. 367, 372, 226 F.2d 269, 274 (1955) (serious constitutional question whether prosecutor may call before grand jury "person against whom an indictment was being sought"); United States v. Scully, supra, at 116 ("suppos[ing] . . . as a matter of ethics or fair play or policy, a prosecutor would . . . refrain from calling as a witness before a Grand Jury any person who is de jure or de facto an accused"); id., at 118 (Frank, J., concurring in result) (suggesting a warning for any person called whom the prosecutor intends to indict); United States v. Grunewald, [425 U.S. 564, 600] 233 F.2d 556, 576 n. 10 (CA2 1956) (Frank, J., dissenting in part), rev'd, 353 U.S. 391 (1957) (warning required for any witness); Connelly v. United States, 249 F.2d 576, 581 (CA8 1957), cert. denied, 356 U.S. 921 (1958) (approving suppression of all testimony, even in presence of warnings, after point prosecutor decided to indict); United States v. Nickels, 502 F.2d 1173, 1176 (CA7 1974), cert. pending, No. 74-735 (by implication Miranda warning required for "potential defendant"); Kitchell v. United States, 354 F.2d 715, 720 (CA1), cert. denied, 384 U.S. 1011 (1966) (by implication warning required for person "clearly suspected"); United States v. De Sapio, 299 F. Supp. 436, 440 (SDNY 1969) (by implication warning required for "target" defendant).
[ Footnote 17 ] It is certainly no response to argue that a de facto defendant is more likely to offer self-incriminatory testimony and thereby advance the needs of law enforcement if only he is left in ignorance of his constitutional rights. The Constitution has already made the underlying value choice, and it is not this Court's function to denigrate it.
[ Footnote 18 ] E. g., United States v. Wong, supra; United States v. Nickels, supra; United States v. Daniels, 461 F.2d 1076, 1077 (CA5 1972); United States v. Friedman, 445 F.2d 1076, 1088 (CA9), cert. denied sub nom. Jacobs v. United States, 404 U.S. 958 (1971); United States v. Mingoia, 424 F.2d 710, 713-714 (CA2 1970); Gollaher v. United States, 419 F.2d 520, 523 (CA9), cert. denied, 396 U.S. 960 (1969); United States v. Corallo, 413 F.2d 1306, 1328 (CA2), cert. denied, 396 U.S. 958 (1969); United States v. Levinson, [425 U.S. 564, 602] 405 F.2d 971, 979 (CA6 1968), cert. denied sub nom. Strang v. United States, 395 U.S. 906 (1969); United States v. DiMichele, 375 F.2d 959, 960 (CA3), cert. denied, 389 U.S. 838 (1967); United States v. Irwin, 354 F.2d 192, 199 (CA2 1965), cert. denied, 383 U.S. 967 (1966); Kitchell v. United States, supra, at 720; United States v. Winter, 348 F.2d 204, 205 (CA2), cert. denied, 382 U.S. 955 (1965); Connelly v. United States, supra, at 581; United States v. De Sapio, supra, at 440; United States v. Zirpolo, 288 F. Supp. 993, 1007 (NJ 1968); United States v. Leighton, 265 F. Supp. 27, 36-37 (SDNY 1967); United States v. Haim, supra, at 932; United States v. Grunewald, 164 F. Supp. 640, 641 (SDNY 1958); United States v. Hoffa, 156 F. Supp. 495, 510-512 (SDNY 1957).
[ Footnote 19 ] Ironically, the greatest impediment to the development of the law concerning a grand jury witness' right to some form of assistance of counsel has been reliance upon the traditional absence of counsel in grand jury proceedings for denial of assistance of counsel in administrative proceedings. E. g., In re Groban; Hannah v. Larche, 363 U.S. 420 (1960). See Recent Developments, Criminal Procedure - Right to Counsel in Investigative Grand Jury Proceedings: Washington Criminal Investigative Act of 1971, 47 Wash. L. Rev. 511, 513 n. 11 (1972).
[ Footnote 20 ] E. g., Boudin, supra, n. 13; Dash, supra, n. 13; Meshbesher, supra, n. 7; The Grand Jury: Powers, Procedures, and Problems, 9 Col. J. L. & Soc. Prob. 681, 713 (1973); The Supreme Court, 1963 Term, 78 Harv. L. Rev. 143, 222 (1964); Note, 1967 Duke L. J., supra, n. 13; Recent Developments, supra, n. 19.
[ Footnote 21 ] See also Sheridan v. Garrison, 273 F. Supp. 673, 679 (ED La. 1967), rev'd on other grounds, 415 F.2d 699 (CA5 1969); Boudin, supra, n. 13, at 17; Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 700 (1968); Meshbesher, supra, n. 7, at 190-191, 195-196; Steele, Right to Counsel at the Grand Jury Stage of Criminal Proceedings, 36 Mo. L. Rev. 193, 201 (1971); The Grand Jury, 9 Col. J. L. & Soc. Prob., supra, n. 20, at 719; The Supreme Court, 78 Harv. L. Rev., supra, n. 20, at 222; Note, 1967 Duke L. J., supra, n. 13, at 131-133; Recent Developments, supra, n. 19, at 517-518.
[ Footnote 22 ] Contra, arguing that the presence of counsel inside the grand jury room is required, Boudin, supra, n. 13, at 17; Friendly, supra, [425 U.S. 564, 606] n. 21, at 701; Meshbesher, supra, n. 7, at 193; Steele, supra, n. 21, at 203; The Grand Jury, 9 Col. J. L. & Soc. Prob., supra, n. 20, at 722; Note, 1967 Duke L. J., supra, n. 13, at 124-125.
Certainly there is no viable argument that allowing counsel to be present in the grand jury room for purposes of consultation regarding testimonial privileges would subvert the nature or functioning of the grand jury proceeding. Such a procedure is sanctioned by statute in several States. Kan. Stat. Ann. 22-3009 (1974); S. D. Comp. Laws 23-30-7 (1975); Utah Code Ann. 77-19-3 (1975); Wash. Rev. Code 10.27.120 (1974); Mich. Stat. Ann. 28:943 (1972) (one-man grand jury).
[ Footnote 23 ] E. g., United States v. George, 444 F.2d 310, 315 (CA6 1971) [425 U.S. 564, 607] (right to consult with attorney "after every question"); United States v. Weinberg, 439 F.2d 743, 745 (CA9 1971) (right to confer with attorney exercised "after almost every question"); United States v. Capaldo, 402 F.2d 821, 824 (CA2 1968), cert. denied, 394 U.S. 989 (1969) (permitted to consult with counsel "whenever he so desired"); United States v. Isaacs, 347 F. Supp. 743, 759 (ND Ill. 1972) ("provided every opportunity to consult with counsel"); Application of Caldwell, 311 F. Supp. 358, 362 (ND Cal. 1970) (permitted to consult with counsel "at any time he wishes"); United States v. De Sapio, 299 F. Supp., at 440 ("could consult with counsel during the interrogation if he so desired"); United States v. Leighton, 265 F. Supp., at 37 (right to consult with counsel "at any time he chose"); United States v. Hoffa, 156 F. Supp., at 512 ("given an opportunity to consult with [his] lawyer"). See also Levine v. United States, 362 U.S. 610, 611 (1960); United States v. Nickels, 502 F.2d 1173 (CA7 1974), cert. pending, No. 74-735; United States v. Daniels, 461 F.2d, at 1077; Perrone v. United States, 416 F.2d 464, 466 (CA2 1969); United States v. Corallo, 413 F.2d, at 1328; United States v. DiMichele, 375 F.2d, at 960; United States v. Irwin, 354 F.2d, at 199; Kitchell v. United States, 354 F.2d, at 720; United States v. Tramunti, 343 F.2d 548, 551 (CA2 1965), vacated, 384 U.S. 886 (1966); United States v. Kane, 243 F. Supp. 746, 753 (SDNY 1965); United States v. Grunewald, 164 F. Supp, at 641-642.
[ Footnote 24 ] The availability of counsel to help ensure the meaningful exercise of the constitutional privilege may in some instances "discourage the prosecutor's efforts to acquire privileged information, but it is exactly this effort which the law condemns in recognizing the privilege. To create privileges and at the same time inhibit their effective use is paradoxical indeed." Note, 1967 Duke L. J., supra, n. 13, at 125 n. 121.
[ Footnote 25 ] This appears to me to be the plain implication of the following passage:
The Fifth Amendment privilege against compulsory self-incrimination provides no protection for the commission of perjury. "Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood." Bryson v. United States, 396 U.S. 64, 72 (footnote omitted). See United States v. Knox, 396 U.S. 77, 82 ; Glickstein v. United States, 222 U.S. 139, 142 . The respondent's grand jury testimony is relevant only to his prosecution for perjury and was not introduced in the prosecution for attempting to distribute heroin. Since this is not a case where it could plausibly be argued that the perjury prosecution must be barred because of prosecutorial conduct amounting to a denial of due process, * I would reverse the judgment without reaching the other issues explored in THE CHIEF JUSTICE'S opinion and in MR. JUSTICE BRENNAN'S separate opinion.