dence from any and every source in the language suggested by amended Section 3324 (c) is unnecessary. It will result only in making probable, by the literal application of the language, that the time and resources of a grand jury will be diverted and distracted by any and every "man on the street" who has a gripe to register.

While the ACLU merely doubts the wisdom and necessity for Sections 102 and 103 of Title I, we strongly oppose Section 104. That section would empower federal grand juries to issue reports and presentments based on information obtained during the course of an investigation into an offense against the criminal laws of the United States brought to the attention of the grand jury by the court or by any person. It is noteworthy that this power is not limited to organized crime investigations. Thus, justification in terms of the need for special weapons to meet the "special challenge" of organized crime will simply not stand up.

Our opposition to any kind of grand jury reports, short of indictments, rests on the fundamental unfairness and inherent abusiveness of such reports. The grand jury, although composed of individual lay citizens chosen to serve for short periods of time, is an official body, traditionally considered an arm of the court. As such, its reports are bound to be given greater credence than would the allegations of a private group or individual. An individual, group or organization made the subject of such a report has no comparable means of disputing any allegations or defending against such criticism. While the grand jury can subpoena witnesses and evidence and compel testimony, the subject of its reports cannot. Moreover, the evidence on which the grand jury bases its findings remains secret so that the public cannot evaluate its findings. In People v. McCabe, 148 Misc. 330, a New York District Court clearly states the objections to grand jury reports and presentments.

A presentment is a foul blow. It wins the importance of a judicial document; yet it lacks the principal attributes the right to answer and appeal. It accuses, but furnishes no forum for a denial. No one knows upon what evidence the finding was based. An indictment may be challenged even defeated. A presentment is immune. It is like the "hit and run" motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed.

The distinction between accusation by indictment and accusation by presentment, though great indeed in a legal sense, is often lost on the public-at-large. When an indictment is filed, the accused has right to a public trial, to a jury, to counsel, to confront the witnesses against him, and to submit his own witnesses. Where a presentment is filed instead, he can only issue a denial for the newspapers and hope that the readers will give it weight in their minds equal to that given to a judicial document rendered by a respected body of citizens a chimeral hope at best. The subject of a presentment or report cannot be said to have been treated with that fundamental fairness which is required by due process of law. It is clear that S. 30 was drafted with an awareness of these objections and that attempts were made to diminish the possibility of abuse and unfairness resulting from empowering grand juries to file reports. A close examination of Section 104 of the bill reveals however that the safeguards written into the bill are far from adequate. All of the supposed safeguards which have been included are absolutely necessary, but even taken all together they are still insufficient. The bill authorizes three kinds of reports.

First, the grand jury could make a report "concerning non-criminal misconduct, malfeasance, or neglect in office by a public officer or employee as the basis for a recommendation of removal or disciplinary action."

Second, it could state that "after inevstigation of a public officer or employee it finds no misconduct, nonfeasance, or neglect in office by him, provided that such public officer or employee has requested the submission of such report."

Finally, it could propose "recommendations for legislative, executive or administrative action in the public interest based upon stated findings."

All three kinds of reports are required to be the result of an authorized investigation pursuant to Section 3324 of Title 18 U.S.C. as amended by Section 103 of the bill. This purports to guard against fishing expeditions and to prevent "general" reports by grand juries. However, given the broad mandate of Section 3324, which authorizes investigations of any alleged offense against the laws of the United States, and its requirement that evidence from any source be considered, the value of this limitation is negligible.

In addition, these reports can be filed and made public by the court only if the court is convinced they are supported by a preponderance of the evidence (Sec

30-902 0-69 +30

tion 3330 (b)). This restriction is designed to assure protection against totally unfounded accusations or criticisms by a grand jury. However, it would seem evident that a standard such as "preponderance of the evidence" is virtually meaningless in the vast majority of grand jury proceedings, where the only evidence heard is that of the prosecution and where the accuser may compel testimony and produce witnesses and documents but the accsued may not.

Specific provisions are included as safeguards with respect to reports concerning non-criminal misconduct, non-feasance or neglect in office by a public official or employee. Each person named must have had an opportunity to testify before the grand jury. While this affords the individual involved some measure of protection it is significant that he is only able to offer his word against that of unknown witnesses with no opportunity for cross-examination or confrontation or even for presentation of other witnesses in his own behalf, a right long recognized as essential to the fact finding process on which our adversary system is based. The report cannot be filed as a public document until 31 days after the named individual has been served with a copy. The individual may appeal the court's decision to file the report. If he avails himself of that right the report is not made public until the appeal is dismissed or the court's decision affirmed. While this right of appeal is useful in contesting any procedural irregularity in the filing of the report its usefulness in providing a review of the substantive criteria of "preponderance of the evidence" is still as meaning. less as the criteria itself. In addition, as an alternative to an appeal the individual may file an answer to the report within 20 days after he is served and that answer becomes an appendix to the report. The value of this safeguard, too, is dubious considering that the grand jury may have had up to 36 months to gather evidence and was assisted immeasurably in that task by its subpoena power and ability to compel testimony while the accused individual has only a few days, and must rely solely on his own resources and ability to find willing witnesses to secure any evidence to support his answer. There is not even any provision for him to seek an extension of time.

Perhaps, the strongest objection to allowing reports which may name and identify a public officer or employee and subject him to criticism and accusation when he is not guilty of any action which would support a criminal indictment is in the potential breadth of this power. The bill defines the term "public officer or employee" as "any officer or employee of the United States, or any State or any public subdivision, or any department, agency or instrumentality thereof." Presumably, then, it covers not only the district attorney or policeman who may have taken a bribe, for example, but also the high school janitor who fails to sweep the halls properly, or a zoo attendant who neglects his assigned duties. Surely the need to "break the back" of organized crime does not require this! Indeed, the entire distinction which S. 30 makes between public officials and employees and other persons is untenable. The consequences of charging a public official with misconduct in office are every bit as grave as are those of calumnizing private citizens. However great the public interest in "clan" government it does not justify subjecting individuals to criticism by an official governmental body against which he cannot defend himself.

The other two kinds of reports authorized by Section 104 of S. 30-those stating the grand jury has found no misconduct, nonfeasance or neglect in office by an official or employee, when requested by that person, and those proposing recommendations for legislative, executive or administrative action-are subject to the proviso that they may only be filed as a public document if not critical of an identified or identifiable person. No definition of an "identified or identifiable person is given. If this protection has any meaning at all it would have to include organizations, groups, corporations, businesses and so forth as they are equally susceptible of harm by grand jury criticism. And, as mentioned above, this seemingly broad protection for individuals against the dangers we have described is substantially diminished by the broad exemption with respect to public officials and employees.

An important objection to empowering grand juries to issue the third kind of reports, those proposing recommendations for legislative, executive, or administrative action is found in the doctrine of separation of powers which is basic to our constitutional scheme. Traditionally, the federal grand jury is an arm of the federal courts. When it exercises its power it is essentially exercising a judicial power. This proposal would add legislative and executive type powers to those now exercised by grand juries. The implications of this may be far

reaching. As the Supreme Court stated clearly in United Public Workers of America v. Mitchell, 330 U.S. 75;

"When the court acts continually within these constitutionally opposed boundaries of their power, their ability to perform their function as a balance for the people's protection against abusive power by other branches of government remains unimpared *** By these mutual checks and balances by and between the branches of government, democracy undertakes to preserve the liberties of the people from excessive concentrations of authority."

No one seriously suggests that the courts themselves be given a general power to conduct investigations into official conduct, recommend legislation and act as general advisor to the legislative and executive branches. It would seem to follow logically that the same principles mitigate against giving this power to an arm of the court made up of untrained laymen who are apt to be less sensitive to constitutional protections of individuals, constitutional doctrines and the nuances thereof. As the United States District Court for the Southern District of New York stated in Application of United Electrical, Radio, and Machine Workers, et al, 111 F. Supp., April 13, 1953.

"The effectivenesses of laws and the quality of their enforcement by administrative agencies are matters for the chief executive and the Congress. Where existing laws seem to be inadequate or to require strengthening the wisdom of remedial legislation rests with the legislature and involves political judgment. Here the courts may not intrude."

It must be remembered that grand juries like members of the Judiciary are not accountable to an electorate and as such are ill-equipped to render political decisions. Their secret proceedings can hardly be properly evaluated by the public.

One can hardly ignore the obvious similarity between a grand jury report recommending legislative, administrative or executive action and Congressional investigations. In both instances the investigative body is endowed with subpoena and contempt powers. Whereas Congressional investigators are answerable to an electorate for abuse of these powers-grand jurors are not. Moreover, the Supreme Court has made clear that there are constitutional limits beyond which a Congressional investigation may not go. See, Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 U.S. 109 (1959); Wilkerson v. United States, 365 U.S. 399 (1961); Deutsch v. United States, 367 U.S. 456 (1961). If Congress may not merely “expose for the sake of exposure," Watkins. at p. 200, it is doubtful that a grand jury, whose members are unaccountable for their actions and whose proceedings in the interest of protecting individual rights are required by law to be secret, may do so. And since the grand jury is devoid of power to act an any of its recommendations what other justification is there for allowing reports than mere exposure.

Historically the grand jury has had two roles to play in our system of justice. It was to act as accuser to root out crime on behalf of the state. Of equal importance, however, was its role of protecting the individual from unfounded accusation. The proposed legislation entirely subordinates the latter role to the interest of the former one. The ACLU, in its concern for the protection of individual liberties, is opposed to its enactment. A statement of William T. Gossett, former President of the ABA quoted by Marquis Childs in his pamphlet "The Erosion of Individual Liberties, is particularly appropos.

"When we are frustrated by the feeling that certain people-* * gangsters or labor racketeers, for example,-have flouted society with inpunity, it is tempting to pillory them through prolonged public exposure * * *. But. '[continued Mr. Gossett]' to try by such means to destroy the very safeguards that protect us against tyranny and arbitrary power."

Title II-Immunity

The purpose of Title II of this bill is to provide grants of immunity from prosecution to compel persons to testify or produce evidence in any case or proceeding before a grand jury or court of the United States involving a violation of any law of the United States or any consipracy to violate such a law. Although, like the rest of S. 30, this Title is rationalized in terms of its necessity for securing organized crime convictions, it is not limited by its terms to such

cases.

Under our reading of this bill, if a person claims his privilege against selfincrimination, he may, with the approval of the Attorney General or an Assistant Attorney General be compelled to testify anyway:

"In no case, however, shall any such testimony or evidence so copelled [sic] as a result of such court order, or any evidence, knowledge, or information the source of which is attributable to any such testimony or evidence so compelled, be used as evidence or in any other manner against him, in or in connection with, any proceeding, case, or matter before any grand jury, court, or other authority of any State or of the United States."

We oppose this Title on the grounds that it is of doubtful constitutionality and that it severely undermines the Fifth Amendment privilege against selfincrimination.

Since Counselman v. Hitchcock, 142 U.S. 547 (1892) held an immunity statute unconstitutional because it did not prevent the use of the "fruits" of the compelled testimony from being used against the witness, federal immunity statutes have generally provided that the witness shall be immune from prosecution for or on account of any transaction, matter or thing concerning which he is compelled to testify or produce evidence. For the Court in Counselman held: "We are clearly of the opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him. can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates." (emphasis added)

Immunity statutes providing such absolute immunity were held constitutional in Brown v. Walker, 161 U.S. 591 (1896); Ullman v. United States, 350 U.S. 422 (1956); Hale v. Henkel, 201 U.S. 43 (1906); and Reina v. United States, 364 U.S. 507(1960). Although the Supreme Court has not had occasion to consider an immunity statute of the precise breadth proposed by the bill now under consideration, in our view it would not be constitutional under the Counselman decision. It does not provide the "absolute immunity" from prosecution clearly required by Counselman, but merely provides that the compelled evidence and its fruits cannot be introduced against the witness in any subsequent proceeding. This does not bar prosecution for the offense to which the testimony relates if based on independently arrived at evidence.

Some have attempted to defend the constitutionality of this bill on the strength of dicta in Justice Goldberg's opinion for the court in Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964), which stated that a witness cannot be compelled by state officials to testify unless the "testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him." Id. at 79. In a footnote it was stated that once a defendant proved he testified under immunity the burden was shifted to the prosecution to show that "their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." Id. at 79 n. 18. See concurring opinion of Justice white, id. at 105-107. Marchetti v. United States, 390 U.S. 30, 58-60 (1968).

More recently, however, the Court has cast doubt as to whether any protection less than absolute immunity from prosecution is adequate under the Fifth Amendment. In Stevens v. Marks, 383 U.S. 236 (1966) involving a waiver of immunity exacted from a state official under threat of loss of job, it was stated:

"We need not stop to determine whether the immunity said to be conferred here which merely prevents the use of the defendant's testimony or its fruits in any subsequent prosecution but, apparently, does not preclude prosecution based on 'independent' evidence ** -constitutes that 'absolute immunity against further prosecution' about which the Court spoke in Counselman v. Hitchcock, *** and which the Court said was necessary if the privilege were to be constitutionally supplanted." Id. at 244-45.

In his concurring opinion Justice Harlan observed that Counselman points to a negative answer to this question. Id. at 249. See Adams v. Maryland, 347 U.S. 179, 182-83 (1954) (semble).

As a practical matter, if a witness is to receive the full protection to which he is entitled by the Fifth Amendment, a negative answer is demanded. Knowing only that the defendant has admitted to unlawful acts while under supposed immunity a prosecutor receives the enormous advantage of having his search narrowed to one person. A less than candid prosecutor would be limited only by

his ingenuity and diligence in uncovering an independent piece of evidence from which he could claim his investigation and its fruits proceeded. In short the burden on the courts to police the use of the fruits of compelled testimony would be onerous and time-consuming, and even then they might not be able to protect defendants adequately.

Doubts as to the constitutionality of the approach taken by this bill were responsible for the decision of the Senate Judiciary Committee less than three years ago to reject such approach in favor of complete immunity from prosecution with respect to compelled racketeering testimony. Report on S. 2190, Senate Committee on the Judiciary, S. Rep. No. 1498, 89th Cong., 2d Sess. 19-20. The Murphy case had already been decided at that time and apparently the Committee was unable to use its dicta to resolve those doubts. Nothing has happened in the interim which affords a basis for disregard of those doubts now.

If a general immunity statute is to be proposed we have far less difficulty with the language contained in S. 975, introduced by Senator Tydings. It would appear to meet the Counselman standard of "absolute immunity." In addition, it is limited by its terms to proceedings involving violations of Title 18, U.S.C.-rather than any United States law. Regardless of the question of constitutionality however, the ACLU objects to any general grant of immunity in that it seriously undermines the Fifth Amendment privilege against self-incrimination. Under S. 30 testimony could be compelled in any court or grand jury proceeding involving a violation of any law of the United States or a conspiracy to violate any such law. Significantly it is not even limited to criminal law violations. This is a vast and limitless expansion of the circumstances under which compulsion is presently permitted by federal immunity statutes.

As Mr. Justice Frankfurter said in the Court's opinion in Ullman v. United States, "This command of the Fifth Amendment ('nor shall any person * * * be compelled in any criminal case to be a witness against himself ** ') registers an important advance in the development of our liberty-'one of the great landmarks in man's struggle to make himself civilized.' Time has not shown that protection from the evils against which the safeguard was directed is needless or unwarranted." 350 U.S. at 426.

During the course of debate in Congress on the 1954 Immunity Act, held constitutional in Ullman, the ACLU made the following statement in opposition to the bill's passage:

"The ACLU considers the immunity law as unwise because we believe that the privilege against self-incrimination should also include protection against selfdegradation. While the courts today might not accept this view, we believe that the past rulings of judges of various courts should still apply, that people should be protected against giving self-degrading testimony.

"Our democratic system is based on the concept of fairness and decent treatment of the individual, and the full power of government should not be brought to bear to force a person to condemn himself by his own words. The Fifth Amendment protection against self-incrimination is rooted in the historical struggle of men to maintain their political beliefs despite government efforts to force confessions which would result in criminal prosecutions. And even if persons testifying today do not disclose criminal activities, non-criminal disclosures about Communist matters could subject them to severe punishment."

Although that statement was cast in the context of the 1954 Act which was confined to matters of national security, its general message applies with much greater force to scope of the present bill which extends the cloak of immunity until little will be left of the privilege. While a constitutional grant of absolute immunity adheres to the letter of the Fifth Amendment it does violence to its spirit and exacts a heavy toll in terms of the quality of our free society. This bill is a sign of government insecurity for it implies that we are powerless to detect and punish wrong-doers in conformity with criminal due process. We do not believe that our government has become so impotent that it must thus sacrifice its dignity. Former Dean, and now Solicitor General, Erwin N. Griswold, in his famous re-affirmation of the privilege against self-incrimination, The Fifth Amendment Today, described the privilege in the following words, to which we subscribe: "If we are not willing to let the Amendment be invoked, where over time, are we going to stop when police, prosecutors, or chairmen want to get people to talk? Lurking in the background here are really ugly dangers which might transform our whole system of free government. In this light, the frustrations caused by the Amendment are a small price to pay for the fundamental protection it provides.