author: Mr. Justice Stevens Mr. Chief Justice Burger,

text:
    HENDERSON, CORRECTIONAL SUPERINTENDENT v. KIBBE
    No. 75-1906.
    Argued March 1, 1977
    Decided May 16, 1977

      Lillian Zeisel Cohen, Assistant Attorney General of New York, argued the cause for petitioner. With her on the briefs were Louis J. Lefkowitz, Attorney General, Samuel A. Hirsho* witz, First Assistant Attorney General, and Margery Evans Reifler, Assistant Attorney General.

      Sheila Ginsberg argued the cause for respondent. With her on the brief were William E. Hellerstein and Phylis Skloot Bamberger

        Lawrence T. Kurlander filed a brief for Monroe County, N. Y., as amicus curiae.

   Mr. Justice Stevens

delivered the opinion of the Court.

Respondent is in petitioner’s custody pursuant to a conviction for second-degree murder. The question presented to us is whether the New York State trial judge’s failure to instruct the jury on the issue of causation was constitutional error requiring a Federal District Court to grant habeas corpus relief. Disagreeing with a divided panel of the Court of Appeals for the Second Circuit, we hold that it was not.

On the evening of December 30, 1970, respondent and his codefendant encountered a thoroughly intoxicated man named Stafford in a bar in Rochester, N. Y. After observing Stafford display at least two $100 bills, they decided to rob him and agreed to drive him to a nearby town. While in the car, respondent slapped Stafford several times, took his money, and, in a search for concealed funds, forced Stafford to lower his trousers and remove his boots. They then abandoned him on an unlighted, rural road, still in a state of partial undress, and without his coat or his glasses. The temperature was near zero, visibility was obscured by blowing snow, and snow banks flanked the roadway. The time was between 9:30 and 9:40 p. m.

At about 10 p. m., while helplessly seated in a traffic lane about a quarter mile from the nearest lighted building, Stafford was struck by a speeding pickup truck. The driver testified that while he was traveling 50 miles per hour in a 40-mile zone, the first of two approaching cars flashed its lights — • presumably as a warning which he did not understand. Immediately after the cars passed, the driver saw Stafford sitting in the road with his hands in the air. The driver neither swerved nor braked his vehicle before it hit Stafford. Stafford was pronounced dead upon arrival at the local hospital.

Respondent and his accomplice were convicted of grand larceny, robbery, and second-degree murder. Only the conviction of murder, as defined in N. Y. Penal Law § 125.25 (2) (McKinney 1975), is now challenged. That statute provides that “[a] person is guilty of murder in the second degree" when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” (Emphasis added.)

Defense counsel argued that it was the negligence of the truckdriver, rather than the defendants’ action, that had caused Stafford’s death, and that the defendants could not have anticipated the fatal accident. On the other hand, the prosecution argued that the death was foreseeable and would not have occurred but for the conduct of the defendants who therefore were the cause of death. Neither party requested the trial judge to instruct the jury on the meaning of the statutory requirement that the defendants’ conduct “thereby cause [d] the death of another person,” and no such instruction was given. The trial judge did, however, read the indictment and the statute to the jury and explained the meaning of some of the statutory language. He advised the jury that a “person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense ivhen he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” App. 89 (emphasis added).

The Appellate Division of the New York Supreme Court affirmed respondent’s conviction. People v. Kibbe, 41 App. Div. 2d 228, 342 N. Y. S. 2d 386 (1973). Although respondent did not challenge the sufficiency of the instructions to the jury in that court, Judge Cardamone dissented on the ground that the trial court’s charge did not explain the issue of causation or include an adequate discussion of the necessary mental state. That judge expressed the opinion that “the jury, upon proper instruction, could have concluded that the victim’s death by an automobile was a remote and intervening cause.”

The New York Court of Appeals also affirmed. 35 N. Y. 2d 407, 321 N. E. 2d 773 (1974). It identified the causation issue as the only serious question raised by the appeal, and then rejected the contention that the conduct of the driver of the pickup truck constituted an intervening cause which relieved the defendants of criminal responsibility for Stafford’s death. The court held that it was “not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt, as indeed it can be here said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.” The court refused to consider the adequacy of the charge to the jury because that question had not been raised in the trial court.

Respondent then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of New York, relying on 28 U. S. C. § 2254. The District Court held that the respondent’s attack on the sufficiency of the charge failed to raise a question of constitutional dimension and that, without more, “the charge is not reviewable in a federal habeas corpus proceeding.” App. 21.

The Court of Appeals for the Second Circuit reversed, 534 F. 2d 493 (1976). In view of the defense strategy which consistently challenged the sufficiency of the proof of causation, the majority held that the failure to make any objection to the jury instructions was not a deliberate bypass precluding federal habeas corpus relief, but rather was an “obviously inadvertent” omission. Id., at 497. On the merits, the court held that since the Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, In re Winship, 397 U. S. 358, 364, the failure to instruct the jury on an essential element as complex as the causation issue in this case created an impermissible risk that the jury had not made a finding that the Constitution requires.

Because the Court of Appeals decision appeared to conflict with this Court's holding in Cupp v. Naughten, 414 U. S. 141, we granted certiorari, 429 U. S. 815.

Respondent argues that the decision of the Court of Appeals should be affirmed on either of two independent grounds: (1) that the omission of an instruction on causation created the danger that the jurors failed to make an essential factual determination as required by Winship; or (2) assuming that they did reach the causation question, they did so without adequate guidance and might have rendered a different verdict under proper instructions. A fair evaluation of the omission in the context of the entire record requires rejection of both arguments.

I

The Court has held “that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, supra, at 364. One of the facts which the New York statute required the prosecution to prove is that the defendants’ conduct caused the death of Stafford. As the New York Court of Appeals held, the evidence was plainly sufficient to prove that fact beyond a reasonable doubt. It is equally clear that the record requires us to conclude that the jury made such a finding.

There can be no question about the fact that the jurors were informed that the case included a causation issue that they had to decide. The element of causation was stressed in the arguments of both counsel. The statutory language, which the trial judge read to the jury, expressly refers to the requirement that defendants’ conduct “cause [d] the death of another person.” The indictment tracks the statutory language; it was read to the jurors and they were given a copy for use during their deliberations. The judge instructed the jury that all elements of the crime must be proved beyond a reasonable doubt. Whether or not the arguments of counsel correctly characterized the law applicable to the causation issue, they surely made it clear to the jury that such an issue had to be decided. It follows that the objection predicated on this Court's holding in Winship is without merit.

II

An appraisal of the significance of an error in the instructions to the jury requires a comparison of the instructions which were actually given with those that should have been given. Orderly procedure requires that the respective adversaries' views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is thé rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.

The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing réquired to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U. S., at 147, not merely whether “the instruction is undesirable, erroneous, or even 'universally condemned,' " id., at 146.

In this case, the respondent’s burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation — beyond the reading of the statutory language itself — of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Since this omission escaped notice on the record until Judge Cardamone filed his dissenting opinion at the intermediate appellate level, the probability that it substantially affected the jury deliberations seems remote.

Because respondent did not submit a draft instruction on the causation issue to the trial judge, and because the New York courts apparently had no previous occasion to construe this aspect of the murder statute, we cannot know with certainty precisely what instruction should have been given as a matter of New York law. We do know that the New York Court of Appeals found no reversible error in this case; and its discussion of the sufficiency of the evidence gives us guidance about the kind of causation instruction that would have been acceptable.

The New York Court of Appeals concluded that the evidence of causation was sufficient because it can be said beyond a reasonable doubt that the “ultimate harm” was “something which should have been foreseen as being reasonably related to the acts of the accused.” It is not entirely clear whether the court’s reference to “ultimate harm” merely required that Stafford’s death was foreseeable, or, more narrowly, that his death by a speeding vehicle was foreseeable. In either event, the court was satisfied that the “ultimate harm” was one which “should have been foreseen.” Thus, an adequate instruction would have told the jury that if the ultimate harm should have been foreseen as being reasonably-related to defendants’ conduct, that conduct should be regarded as having caused the death of Stafford.

The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given. One of the elements of respondent’s offense is that he acted “recklessly,” supra, at 148, 149. By returning a guilty verdict, the jury necessarily found, in accordance with its instruction on recklessness, that respondent was “aware of and consciously disregard[ed] a substantial and unjustifiable risk” that death would occur. A person who is “aware of and consciously disregards” a substantial risk must also foresee the ultimate harm that the risk entails. Thus, the jury’s determination that the respondent acted recklessly necessarily included a determination that the ultimate harm was foreseeable to him.

In a strict sense, an additional instruction on foreseeability would not have been cumulative because it would have related to an element of the offense not specifically covered in the instructions given. But since it is logical to assume that the jurors would have responded to an instruction on causation consistently with their determination of the issues that were comprehensively explained, it is equally logical to conclude that such an instruction would not have affected their verdict. Accordingly, we reject the suggestion that the omission of more complete instructions on the causation issue “so infected the entire trial that the resulting conviction violated due process.” Even if we were to make the unlikely assumption that the jury might have reached a different verdict pursuant to an additional instruction, that possibility is too speculative to justify the conclusion that constitutional error was committed.

The judgment is reversed.

It is so ordered.

Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Chief Justice Burger,

concurring in the judgment.

I concur in the judgment, but I find it unnecessary to resolve the question of New York criminal law considered by the Court, ante, at 155-157. In my view, the federal court was precluded from granting respondent’s petition for collateral relief under 28 U. S. C. § 2254 because he failed to object to the jury instructions at the time they were given. By that failure he waived any claim of constitutional error. This was precisely why the New York Court of Appeals refused to consider respondent’s belated claim. Cf. Henry v. Mississippi, 379 U. S. 443 (1965).

This Court has held that under certain circumstances a defendant’s failure to comply with state procedural requirements will not be deemed a waiver of federal constitutional rights, unless it is shown that such bypass was the result of a deliberate tactical decision. See Fay v. Noia, 372 U. S. 391 (1963); Humphrey v. Cady, 405 U. S. 504 (1972). These cases, however, involved posi-trial omissions of a technical nature which would be unlikely to jeopardize substantial state interests. Midtrial omissions such as occurred in this case, on the other hand, are substantially different. “It is one thing to fail to utilize the [state] appeal process to cure a defect which already inheres in a judgment of conviction, but it is quite another to forgo making an objection or exception which might prevent the error from ever occurring.” Mullaney v. Wilbur, 421 U. S. 684, 704 n. (1975) (Rehnquist, J., concurring); see Estelle v. Williams, 425 U. S. 501, 513-514 (1976) (Powell, J., concurring). Thus, by failing to object to the jury charge, respondent injected into the trial process the very type of error which the objection requirement was designed to avoid. Federal courts may not overlook such failure on collateral attack.

The “deliberate bypass” doctrine of Fay v. Noia, supra, should not be extended to midtrial procedural omissions which impair substantial state interests. I would simply hold that the United States District Court was barred from examining the substance of respondent’s constitutional claim, and rest our reversal of the Court of Appeals on that ground.

      A pathologist testified that the alcohol content in Stafford’s blood was indicative of a “very heavy degree of intoxication.” App. 58.

       Tr. 723.

       Respondent was sentenced to concurrent terms of 15 years to life on the murder conviction; 5-15 years on the robbery conviction; and an indeterminate term of up to four years on the grand larceny conviction.

       “Let’s look at this indictment. Count 1 says and I will read the important part. That the defendant, ‘Felon[i] ously and under circumstances evincing a depraved indifference to human life recklessly engaged in conduct which created a grave risk of death to another person, to wit, George Stafford and thereby caused the death of George Stafford.’ So, you can see by the accent that I put on reaching that, the elements of this particular crime, and which must be proven beyond a reasonable doubt.
      “. . . [YJou are going to have to honestly come to the conclusion that here is three people, all three drinking, and that these two, or at least my client were in a position to perceive this grave risk, be aware of it and disregard it. Perceive that Mr. Stafford would sit in the middle of the northbound lane, that a motorist would come by who was distracted by flashing lights in the opposite lane, who then froze at the wheel, who then didn’t swerve, didn’t brake, and who was violating the law by speeding, and to make matters worse, he had at that particular time, because of what the situation was, he had low beams on, that is a lot of anticipation. That is a lot of looking forward. Are you supposed to anticipate that somebody is going to break the law when you move or do something? I think that is a reasonable doubt.” App. 68.

       “As I mentioned not only does the first count contain reference to and require proof of a depraved indifference to a human life, it proves that the defendant recklessly engaged in conduct which created a risk of death in that they caused the death of George Stafford. Now, I very well know, members of the jury, you know, that quite obviously the acts of both of these defendants were not the only the direct or the most preceding cause of his death. If I walked with one of you downtown, you know, and we went across one of the bridges and you couldn’t swim and I pushed you over and you drowned because you can’t swim, I suppose you can say, well, you drowned because you couldn’t swim. But of course, the fact is that I pushed you over. The same thing here. Sure, the death, the most immediate, the most preceding, the most direct cause of Mr. Stafford’s death was the motor vehicle .... But how did he get there ? Or to put it differently, would this man be dead had it not been for the acts of these two defendants? And I submit to you, members of the jury, that the acts of these two defendants did indeed cause the death of Mr. Stafford. He didn’t walk out there on East River Road. He was driven out there. His glasses were taken and his identification was taken and his pants were around his ankles.” Id,., at 75-76.

       41 App. Div. 2d, at 231, 342 N. Y. S. 2d, at 390. He added:
      “There are no statutory provisions dealing with intervening causes — nor is civil case law relevant in this context. The issue of causation should have been submitted to the jury in order for it to decide whether it would be unjust to hold these appellants liable as murderers for the chain of events which actually occurred. Such an approach is suggested in the American Law Institute Model Penal Code (see Comment, § 2.03, pp. 133, 134 of Tentative Draft No. 4).” Id., at 231-232, 342 N. Y. S. 2d, at 390.
      The dissent did not cite any New York authority describing the causation instruction that should have been given.

       35 N. Y. 2d, at 412, 321 N. E. 2d, at 776. The New York court added:
      “We subscribe to the requirement that the defendants’ actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability. Applying these criteria to the defendants’ actions, we conclude that their activities on the evening of December 30, 1970 were a sufficiently direct cause of the death of George Stafford so as to warrant the imposition of criminal sanctions. In engaging in what may properly be described as a despicable course of action, Kibbe and KralL left a helplessly intoxicated man without his eyeglasses in a position from which, because of these attending circumstances, he could not extricate himself and whose condition was such that he could not even protect himself from the elements. The defendants do not dispute the fact that their conduct evinced a depraved indifference to human life which created a grave risk of death, but rather they argue that it was just as likely that Stafford would be miraculously rescued by a good [SJamaritan. We cannot accept such an argument. There can be little doubt but that Stafford would have frozen to death in his state of undress had he remained on the shoulder of the road. The only alternative left to him was the highway, which in his condition, for one reason or another, clearly foreboded the probability of his resulting death.” Id., at 413, 321 N. E. 2d, at 776.

       Cf. Humphrey v. Cady, 405 U. S. 504, 517; Fay v. Noia, 372 U. S. 391, 427-428, 438-439.

       “The omission of any definition of causation, however, permitted the jury to conclude that the issue was not before them or that causation could be inferred merely from the fact that Stafford’s death succeeded his abandonment by Kibbe and Krall.
      “. . . The possibility that jurors, as laymen, may misconstrue the evidence before them makes mandatory in every case instruction as to the legal standards they must apply. . . . Error in the omission of an instruction is compounded where the legal standard is complex and requires that fine distinctions be made. That is most assuredly the situation in this case. It has been held that where death is produced by an intervening force, such as Blake’s operation of his truck, the liability of one who put an antecedent force into action will depend on the difficult determination of whether the intervening force was a sufficiently independent or supervening cause of death. See W. LaFave & A. Scott, Criminal Law 257-263 (1972) (collecting cases). The few cases that provide similar factual circumstances suggest that the controlling questions are whether the ultimate result was foreseeable to the original actor and whether the victim failed to do something easily within his grasp that would have extricated him from danger.” 534 F. 2d, at 498-499 (footnotes omitted).
      In dissent, Judge Mansfield reasoned that the arguments of counsel, the reading of the statutory definition of the crime, and the general instructions made it clear to the jury that they had to find beyond a reasonable doubt that defendants’ conduct was a direct cause of Stafford’s death and that the death was not attributable solely to the truckdriver. Even though instructions on intervening cause might have been helpful, Judge Mansfield concluded that the omission was not constitutional error.

       “In determining the effect of this instruction on the validity of respondent’s [state] conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U. S. 100 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.” Cupp v. Naughten, 414 U. S. 141, 146-147.

        Allis v. United States, 155 U. S. 117, 122-123; Harvey v. Tyler, 2 Wall. 328, 339; see, e. g., Lopez v. United States, 373 U. S. 427, 436.

        In Namet v. United States, 373 U. S. 179, 190, the Court characterized appellate consideration of a trial court error which was not obviously prejudicial and which the defense did not mention during the trial as “extravagant protection.” See Boyd v. United States, 271 U. S. 104, 108.

       The strong interest in preserving the finality of judgments, see, e. g., Blackledge v. Allison, ante, p. 83 (Powell, J., concurring); Schneckloth v. Bustamonte, 412 U. S. 218, 256-266 (Powell, J., concurring), as well as the interest in orderly trial procedure, must be overcome before collateral relief can be justified. For a collateral attack may be made many years after the conviction when it may be impossible, as a practical matter, to conduct a retrial.

       35 N. Y. 2d, at 412-413, 321 N. E. 2d, at 776. The passage of the opinion quoted in n. 7, supra, emphasizes the obvious risk of death by freezing, suggesting that defendants need not have foreseen the precise manner in which the death did occur.

        Supra, at 149. In charging the jury on recklessness the trial judge quoted the statutory definition of that term in N. Y. Penal Law § 15.05 (3) (McKinney 1975).

       In fact, it is not unlikely that a complete instruction on the causation issue would actually have been favorable to the prosecution. For example, an instruction might have been patterned after the following example given in W. LaFave & A. Scott, Criminal Law 260 (1972):

        “A, with intent to kill B, only wounds B, leaving him lying unconscious in the unlighted road on a dark night, and then C, driving along the road, runs over and kills B. Here C’s act is a matter of coincidence rather than a response to what A has done, and thus the question is whether the subsequent events were foreseeable, as they undoubtedly were in the above illustration.”
      Such an instruction would probably have been more favorable to the prosecution than the instruction on recklessness which the court actually gave.

      This is not a case such as Mullaney, where the State’s highest court ruled on the defendant’s claim even though he failed to raise the issue at trial. Rather, as the Court notes, ante, at 150, the New York Court of Appeals here expressly refused to rule on the adequacy of the charge because respondent failed to object in the trial court.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Rehnquist,

license: Public Domain

text:
    CHAPPELLE v. GREATER BATON ROUGE AIRPORT DISTRICT et al.
    No. 76-352.
    Argued April 25, 1977
    Decided May 16, 1977

      Herschel C. Adcock argued the cause and filed a brief for appellant.

      Joseph F. Keogh argued the cause and filed a brief for appellees.
   Per Curiam.

The judgment is reversed. Turner v. Fouche, 396 U. S. 346, 361-364 (1970).

Mr. Justice Rehnquist,

dissenting.

Appellant, E. C. Chappelle, Jr., wished to serve, upon appointment, as a commissioner on the Greater Baton Rouge Airport Commission. He, however, was deemed not qualified since, at the time of his appointment, he owned no “property assessed in East Baton Rouge Parish,” as required by Louisiana Act 151 of 1969. The sole requirement is that he own property, whether real or personal; that is assessed in that parish. We sit to judge the constitutionality, not the wisdom, of this restriction. I am unable to agree that the Constitution, or prior cases from this Court, require today’s declaration of unconstitutionality.

This Court has regularly sustained the imposition of city or county residency requirements on municipal employees. McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U. S. 645 (1976); Detroit Police Officers Assn. v. Detroit, 405 U. S. 950 (1972); see also Bute v. Quinn, 535 F. 2d 1285 (CA7), cert. denied, 429 U. S. 1027 (1976). It is dubious at best whether the requirement that a public officeholder own any assessable property within a parish is any more burdensome, or any less rational, than a requirement that he and his family live in that parish.

This Court has also sustained durational residency requirements of five and seven years for candidates for the office of state governor and senator, Kanapaux v. Ellisor, 419 U. S. 891 (1974); Sununu v. Stark, 420 U. S. 958 (1975). If a State can impose a five-year residency requirement on its candidates for its highest political office, it should be able to impose a minimal locational property requirement on persons seeking office in this airport district.

The Louisiana Court of Appeal concluded:

“In enacting Act 151 of 1969, the legislature sought to insure that the members of the commission would have a substantial interest in performing their duties effectively and conscientiously. The legislature could have concluded reasonably that property owners of East Baton Rouge Parish would have that interest.” App. 22-23.

Surely it was as reasonable to conclude so in this case as it is in situations involving residency, or durational residency, requirements. Since I believe today’s opinion is inconsistent with these cases, and since, in light of these later cases, I would not extend Turner v. Fouche, 396 U. S. 346, 361-364 (1970), I respectfully dissent.


text:
    TEXAS v. LOUISIANA
    No. 36, Orig.
    Decided June 14, 1976
    Decree entered May 16, 1977
   DECREE

For the purpose of giving effect to the opinion of this Court announced on June 14, 1976, 426 U. S. 465:

It Is Ordered, Adjudged and Decreed As Follows:

1. That the extension of the boundary southerly from the point where the line forming the boundary between Texas and Louisiana southerly from the Arkansas boundary, intersects the geographical middle of the Sabine River (Latitude 31°59' 56.225" North, Longitude 94°02/33.105" West, said point being taken from the United States Geological Survey Quadrangle Center, Tex.-La. 1958 Edition) to the mid-point between the gulfward extension of the Sabine Pass jetties Latitude 29°38'37.329" North, Longitude 93°49/30.940" West hereby is established.

Said boundary commences at Latitude 31°59/56.225" North and Longitude 94°02/33.105" West, thence proceeding in a southerly direction along the Sabine River using the federal line as shown for the boundary on the United States Geological Survey Quadrangle Center, Tex.-La., 1958 Edition (photo-revised 1969) and signed by Hatley N. Harrison, Jr., for Louisiana on February 20, 1974, and by H. H. Forbes, Jr., for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-1.

Thence, on the United States Geological Survey Quadrangle Logansport, La.-Tex. Edition of 1956 (photorevised 1969) and signed by Hatley N. Harrison, Jr., for Louisiana on February 20, 1974, and Herman H. Forbes, Jr. for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-2, using the federal line as shown along the Sabine River as the boundary except for the alignments shown in red. These red alignments denote where the boundary follows old oxbows that formerly were the Sabine River and are located in the vicinity of:

LATITUDE NORTH LONGITUDE WEST
31°54/36// 93°55'51"
31053'45" 93055'54"
31 °53'34" 93°54'02"
31°50'20" 93°52/38"
31°49,22// 93o52'09"
31°47'27" 93°50'05"
31°47'04" 93°50/05'/
31046'16" 93°49'30"

Thence, on the United States Geological Survey Quadrangle Patroon, Tex.-La., Edition of 1956 (photorevised 1969) and signed by Hatley N. Harrison, Jr., for Louisiana on February 20, 1974, and by Herman H. Forbes, Jr. for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-3, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:

LATITUDE NORTH LONGITUDE WEST
31o42'06" 93°48'60,/
31°41T2" 93°48'37"
31°36'52" 93°49'33"
31°31'44" 93°45'19"

Thence, on the United States Geological Survey Quadrangle Zwolle, La.-Tex., Edition of 1957 (photorevised 1969) and signed by Hatley N. Harrison, Jr., for Louisiana on February 20, 1974, and by Herman H. Forbes, Jr., for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-4, using the federal line as shown along the Sabine River as the boundary except for the former alignment shown in red. It is located in the vicinity of Latitude 31°31,50// North and Longitude 93°45'00" West.

Thence, on the United States Geological Survey Quadrangle Negreet, La.-Tex., Edition of 1954 (photorevised 1969) and signed by Hatley N. Harrison, Jr. for Louisiana, on February 20, 1974 and by Herman H. Forbes, Jr. for Texas on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-5, using the federal line as shown along the Sabine River as the boundary.

Thence, on the United States Geological Survey Quadrangle Weirgate, Tex.-La., Edition of 1954 (photorevised 1969) and signed by Hatley N. Harrison, Jr. for Louisiana on March 29, 1974, and by Herman H. Forbes, Jr. for Texas on April 5, 1974, which is in evidence in this case as Texas Exhibit AAA-6, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:

LATITUDE NORTH LONGITUDE WEST
31°11T2" 93°33'10"
31°04'16// 93°32/03"
31°00T4" 93°34/10//

Thence, on the United States Geological Survey Quadrangle Merryville, Tex.-La., Edition of 1959 signed by Hatley N. Harrison, Jr. for Louisiana on February 20, 1974, and by Herman H. Forbes, Jr. for Texas, on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-7, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:

LATITUDE NORTH LONGITUDE WEST
30°50'39" 93°33'37//
30°45T8" 93°36'23"

Thence, on the United States Geological Survey Quadrangle Bon Weir, La.-Tex., Edition of 1959 signed by Hatley N. Harrison, Jr. for Louisiana on February 20, 1974, and by Herman H. Forbes, Jr. for Texas, on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-8, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:

LATITUDE NORTH LONGITUDE WEST
30°43'27" 93°36'47"
30°38T4" 93°40'40"
30°34'49" 93°42'42"
30°34'40" 93°43'13"
30°30'38" 93°42'28"

Thence, on the United States Geological Survey Quadrangle Starks, La.-Tex. Edition of 1959 (photorevised 1967) and the United States Geological Survey Quadrangle Bessmay, Tex.La., Edition of 1955, each signed by Hatley N. Harrison, Jr., for Louisiana on February 20, 1974, and by Herman H. Forbes, Jr., for Texas on February 20, 1974, which are in evidence in this case as Texas Exhibits AAA-9 and AAA-10, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:

LATITUDE NORTH LONGITUDE WEST

30°23'40" 93°44'36"

30°19T7" 93°45'21"

30°18'40" 93°44'37"

30°16'58" 93°42'12"

30°15'25" 93°42'08"

Thence, on the United States Geological Survey Quadrangle Orange, La.-Tex., Edition of 1960 signed by Hatley N. Harrison, Jr., for Louisiana, on March 29, 1974, and by Herman H. Forbes, Jr., for Texas, on May 20, 1974, which is in evidence in this case as Texas Exhibit AAA-11, using the federal line as shown along the Sabine River as the boundary except for the former alignments shown in red. These are located in the vicinity of:

LATITUDE NORTH LONGITUDE WEST

30°12T1" 93°42'46"

30° 11/38" 93°42'33"

30°06'04" 93°42'37"

30°05/09" 93°43'49"

Thence, on the United States Geological Survey Quadrangle, Orangefield, Tex.-La., Edition of 1957 signed by Hatley N. Harrison, Jr., for Louisiana, on February 20, 1974, and by Herman H. Forbes, Jr., for Texas, on February 20, 1974, which is in evidence in this case as Texas Exhibit AAA-12, using the federal line shown along the Sabine River as the boundary to a point on the geographic middle of the Sabine River whose position is Latitude 30°00'00.000" North and Longitude 93°46'07.952" West.

And thence, as shown on Exhibit 13, which is in evidence herein, the boundary from the point last mentioned through Middle Pass at the mouth of the Sabine River and through Sabine Lake and Pass to the seaward end of the jetties is defined by straight lines between points in either Louisiana (Lambert) Coordinate System, South Zone, or Texas (Lambert) Coordinate System, South Central Zone, whose geographic positions are as follows:

Latitude North Longitude West Location
COMMENCE AT 30°00/00.000" 93°46/07.952" River
THROUGH 29°59'51.826" 93°46'09.068" Head of Pass
THROUGH 29°59'47.316" 93°46T3.110" River
THROUGH 29°59/43.790" 93° 46'18.996" River
THROUGH 29°59'42.357" 93°46/24.193" River
THROUGH 29°59'41.976" 93°46/31.407" River
THROUGH 29°59'41.857'< 93°46/36.751" River
THROUGH 29°59'41.098" 93°46'41.339" River
THROUGH 29°59'36.127" 93°46/53.104" River
THROUGH 29°59/34.754" 93°46/57.677" Head of Pass
THROUGH 29°59/13.842" 93°47'27.465" Middle Pass
THROUGH 29°59/00.673// 93°47/36.676" Middle Pass
THROUGH 29°58'50.683" 93°47'43.561" Middle Pass
THROUGH 29°58'43.739" 93°47'48.469" Upper Sabine Lake
THROUGH 29°58'37.530" 93°47'54.478" Upper Sabine Lake
THROUGH 29°58'30.922" 93°48/09.976" Upper Sabine Lake
THROUGH 29°58/03.916,/ 93°48/20.679" Upper Sabine Lake
THROUGH 29°56'49.422" 93°48/31.283" Upper Sabine Lake
THROUGH 29°56/23.803,/ 93°48/37.697" Upper Sabine Lake
THROUGH 29° 56'19.089" 93°48/43.491" Upper Sabine Lake
THROUGH 29°56T1.739" 93°48/47.345" Upper Sabine Lake
Latitude North Longitude West Location
THROUGH 29055'57.322" 93°48/50.454" Upper Sabine Lake
THROUGH 29°55'03.827" 93°49/04.810" Upper Sabine Lake
THROUGH 29°54'36.973" 93°49/16.302" Upper Sabine Lake
THROUGH 29°54'04.585" 93°49/37.656" Upper Sabine Lake
THROUGH 29°53'32.579" 93°50'03.845" Upper Sabine Lake
THROUGH 29°52'56.560" 93°50'21.747" Upper Sabine Lake
THROUGH 29°52/39.770,/ 93°50'35.039" Upper Sabine Lake
THROUGH 29°52'25.145" 93°51/09.699" Middle of Sabine Lake
THROUGH 29o5U50.473" 93°52'07.103" Lower Sabine Lake
THROUGH 29°51'32.542" 93°52'28.004" Lower Sabine Lake
THROUGH 29°51'15.878" 93°52'57.568" Lower Sabine Lake
THROUGH 29°51/05500" 93°53'19.673" Lower Sabine Lake
THROUGH 29°50'54.303" 93°53,35.182" Lower Sabine Lake
THROUGH 29°50'18.169" 93°54/20.311" Lower Sabine Lake
THROUGH 29°49'49.772" 93°54'49.448" Lower Sabine Lake
THROUGH 29°49/44.849" 93°54/58.065" Lower Sabine Lake
THROUGH 29°49'37.618" 93°55/05.771" Lower Sabine Lake
THROUGH 29°49'20.303" 93°55,20.142" Lower Sabine Lake
THROUGH 29°48'42.959" 93°55'35.809" Lower Sabine Lake
THROUGH 29°48'18.451" 93°55/40.759" Lower Sabine Lake
THROUGH 29°47'36.545" 93°55'39.194" Lower Sabine Lake
THROUGH 29°47/15.758// 93°55'30.254" Lower Sabine Lake
THROUGH 29°47/05.436" 93°55/18.919" Lower Sabine Lake
THROUGH 29°46'58.740" 93°55/01.889" Lower Sabine Lake
THROUGH 29°46'48.210" 93°54/46.996" Lower Sabine Lake
THROUGH 29°46'36.049" 93°54/25.832" Lower Sabine Lake
THROUGH 29°46'28.073" 93°54/13.425" Lower Sabine Lake
THROUGH 29°46'18.585" 93°53'57591" Lower Sabine Lake
THROUGH 29°46'06.942" 93°53'45.018" Sabine Pass
THROUGH 29°45,54.345// 93°53'30.849" Sabine Pass
THROUGH 29°45'49.978" 93°53'28.808" Sabine Pass
THROUGH 29°45'38.577" 93°53,26.928" Sabine Pass
THROUGH 29°45,18.638" 93053'33.851" Sabine Pass
THROUGH 29°45/05.648// 93°53/32.213" Sabine Pass
THROUGH 29°44/54.133" 93°53'31.124" Sabine Pass
THROUGH 29°44'43.478" 93°53'28.071" Sabine Pass
THROUGH 29°44/35.209" 93°53'18.953" Sabine Pass
THROUGH 29 °44'31.543" 93°53'11.427" Sabine Pass
THROUGH 29°44/27.961" 93°53'02.088" Sabine Pass
THROUGH 29°44/22.581" 93°52/40.847" Sabine Pass
Latitude North Longitude West Location
THROUGH 29°44T1.018" 93°52'03.826" Sabine Pass
THROUGH 29°44/04.304// 93051'54.092" Sabine Pass
THROUGH 29°43/54.534// 93°51'48.229" Sabine Pass
THROUGH 29°43'37.354" 93°51'40.499" Sabine Pass
THROUGH 29°43'32.000" 93°51'35.690" Sabine Pass
THROUGH 29°43,16.198// 93°51,23.209,/ Sabine Pass
THROUGH 29°43/07.451// 93°51/24.917" Sabine Pass
THROUGH 29°42'58.535" 93°51'25.146" Sabine Pass
THROUGH 29°42'52.596" 93°51/22.444// Sabine Pass
THROUGH 29°42/37.071// 93°51'08.441" Sabine Pass
THROUGH 29°42/25.303" 93°51'02.416" Sabine Pass
THROUGH 29°42'17.991" 93°50'56.448" Sabine Pass
THROUGH 29°42/11.305" 93° 50'52.934" Sabine Pass
THROUGH 29°43/57.311" 93°50'47.841" Head of Jetties
THROUGH 29°41'15.323" 93°50,11.722" Jetties
TO 29°38'37.329" 93°49'30.940" End of Jetties

2. That the offshore lateral boundary between the States of Texas and Louisiana seaward from the point Latitude 29° 38' 37.329" North, Longitude 93°49'30.940" West (end of jetties) is a line running South-Southeasterly from said point on a constant bearing of South 13°44'45.8" east true to the seaward limit of Louisiana’s Submerged Lands Act grant. Texas’ historic boundary then continues offshore on the same bearing to the point Latitude 29°32'06.784" North, Longitude 93°47' 41.699" West. This offshore lateral boundary and the Texas historical boundary are shown upon Exhibit 14 which is in evidence in this case.

3. That the United States holds no title to or interest in any island in the west half of the Sabine River by virtue of that island’s continuous existence since 1848, when the western half of that River was part of the territory of the United States, but not part of Texas. Louisiana does not hold title to or interest in any island in the west half of the Sabine River. The United States and Texas do not hold title to or interest in any island in the east half of the Sabine River.

4. That Exhibits 1-14, in evidence herein and above mentioned, be certified by the Special Master as delineating the boundary between the State of Texas and the State of Louisiana, from Latitude 32° North, as defined herein, to the seaward limits of Louisiana’s Submerged Land Act grant, and the seaward limits of Texas’ historical boundary, as defined herein, and that the State of Louisiana be directed to deposit a copy of these maps, so certified by the Special Master, along with a certified copy of this decree, with the Register of -the State Land Office for the State of Louisiana, and that the State of Texas be directed to deposit a set of these maps, so certified by the Special Master, along with a certified copy of this decree, with the Commissioner of the General Land Office of the State of Texas.

5. That the costs be taxed to the parties in accordance with their contribution to the fund established by the Special Master, and that no costs be taxed for the services of the Special Master.

6. That any unexpended funds contributed by the parties to the Special Master for necessary expenses be returned to the parties.

7. That upon such return of funds the Honorable Robert Van Pelt, the Special Master appointed in this cause, will have completed his duties, and is thereupon discharged.


author: Per Curiam.

text:
    PRESSLER, MEMBER, U. S. HOUSE OF REPRESENTATIVES v. BLUMENTHAL, SECRETARY OF THE TREASURY, et al.
    No. 76-1005.
    Decided May 16, 1977
   Per Curiam.

The motion of We the People for leave to file a brief, as amicus curiae, is granted. The motion of James W. Jeffords, et al., for leave to file a brief, as amici curiae, is granted.

Appellant challenges the operation of certain provisions of the Postal Revenue and Federal Salary Act of 1967, 2 U. S. C. §§ 351-361, and of the 1975 Executive Salary Cost-of-Living Adjustment Act, 2 U. S. C. § 31 (1970 ed., Supp. V), relating to increases in salaries paid members of Congress. He asserts that the operation of these Acts violates Art. I, § 1, and § 6, cl. 1 (the Ascertainment Clause), of the Constitution.

On April 4, 1977, Congress passed an amendment to the Postal Revenue and Federal Salary Act. On April 12, the President signed that amendment into law. Pub. L. 95-19, 91 Stat. 45.

It appearing that the amendment to the Postal Revenue and Federal Salary Act will alter materially the scope and perhaps the nature of appellant's suit, the judgment of the District Court is vacated, and the case is remanded to that court for further consideration in the light of the new legislation.

It is so ordered.

Me. Justice Stevens would affirm the judgment dismissing the complaint.


text:
    ASHCROFT, ATTORNEY GENERAL OF MISSOURI v. MATTIS
    No. 76-1179.
    Decided May 16, 1977
   Per Curiam.

Appellee’s 18-year-old son was shot and killed by police while attempting to escape arrest. Appellee filed suit under 42 U. S. C. § 1983 against the police officers in the United States District Court for the Eastern District of Missouri. He sought to recover damages, and also to obtain a declaratory judgment that the Missouri statutes authorizing the police action were unconstitutional. The District Court held that a defense of good faith had been established, and denied both forms of relief. No appeal was taken from the denial of damages, but appellee did seek review of the denial of declaratory relief. The Eighth Circuit held that declaratory relief was available and remanded for consideration of the merits of the constitutional issue. Mattis v. Schnarr, 502 F. 2d 588 (1974).

On remand, appellee filed an amended complaint, in which he made no claim for damages. The Missouri Attorney General was allowed to intervene in defense of the statutes, and the case was then submitted on stipulated facts. The District Court upheld the statutes, Mattis v. Schnarr, 404 F. Supp. 643 (1975), but was reversed by a divided Court of Appeals, sitting en banc, 547 F. 2d 1007 (1976). The Attorney General brought an appeal under 28 U. S. C. § 1254 (2) from the holding that the state statutes were unconstitutional.

Although we are urged to consider the merits of the Court of Appeals’ holding, we are unable to do so, because this suit does not now present a live “case or controversy.” This suit was brought to determine the police officers’ liability for the death of appellee’s son. That issue has been decided, and there is no longer any possible basis for a damages claim. Nor is there any possible basis for a declaratory judgment. For a declaratory judgment to issue, there must be a dispute which “calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts.” Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 242 (1937). See also Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941). Here, the District Court was asked to answer the hypothetical question whether the defendants would have been liable apart from their defense of good faith. No “present right” of appellee was at stake. Indeed, appellee’s primary claim of a present interest in the controversy is that he will obtain emotional satisfaction from a ruling that his son’s death was wrongful. Appellee’s Motion to Affirm 5-6, n. 1. Emotional involvement in a lawsuit is not enough to meet the case-or-controversy requirement; were the rule otherwise, few cases could ever become moot.

The judgment of the Court of Appeals is vacated, and the case is remanded with instructions to direct the District Court to dismiss the second amended complaint.

It is so ordered.

       These statutes permit police to use deadly force in apprehending a person who has committed a felony, following notice of the intent to arrest. Mo. Rev. Stat. §§ 559.040 and 544.190 (1969); see Mattis v. Schnarr, 502 F. 2d 588, 591, and n. 4 (CA8 1974).

       The second amended complaint also alleges that appellee has another son who “if ever arrested or brought under an attempt at arrest on suspicion of a felony, might flee or give the appearance of fleeing, and would therefore be in danger of being killed by these defendants or other police officers . . . .” 3 App. in Mattis v. Schnarr, No. 75-1849 (CA8), p. 5 (emphasis added). Such speculation is insufficient to establish the existence of a present, live controversy.


author: Mr. Chief Justice Burger

text:
    UNITED STATES v. WONG
    No. 74-635.
    Argued December 6, 1976
    Decided May 23, 1977

      William F. Sheehan III argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, and Deputy Solicitor General Frey.

      Allan Brotsky argued the cause and filed a brief for respondent.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether a witness who, while under investigation for possible criminal activity, is called to testify before a grand jury and who is later indicted for perjury committed before the grand jury, is entitled to have the false testimony suppressed on the ground that no effective warning of the Fifth Amendment privilege to remain silent was given.

(1)

Rose Wong, the respondent, came to the United States from China in early childhood. She was educated in public schools in San Francisco, where she completed eight grades of elementary education. Because her husband does not speak English, respondent generally speaks in her native tongue in her household.

In September 1973 respondent was subpoenaed to testify before a federal grand jury in the Northern District of California. The grand jury was investigating illegal gambling and obstruction of state and local law enforcement in San Francisco. At the time of her grand jury appearance, the Government had received reports that respondent paid bribes to two undercover San Francisco police officers -and agreed to make future payments to them. Before any interrogation began, respondent was advised of her Fifth Amendment privilege; she then denied having given money or gifts to police officers or having discussed gambling activities with them. It is undisputed that this testimony was false.

(2)

Respondent was indicted for perjury in violation of 18 U. S. C. § 1623. She moved to dismiss the indictment on the ground that, due to her limited command of English, she had not understood the warning of her right not to answer incriminating questions. At a suppression hearing, defense counsel called an interpreter and two language specialists as expert witnesses and persuaded the District Judge that respondent had not comprehended the prosecutor’s explanation of the Fifth Amendment privilege; the court accepted respondent’s testimony that she had thought she was required to answer all questions. Based upon informal oral findings to this effect, the District Court ordered the testimony suppressed as evidence of perjury.

Accepting the District Court’s finding that respondent had not understood the warning, the Court of Appeals held that due process required suppression where “the procedure employed by the government was fraught with the danger ... of placing [respondent] in the position of either perjuring or incriminating herself.” 553 F. 2d 576, 578 (CA9 1974). Absent effective warnings of the right to remain silent, the court concluded, a witness suspected of criminal involvement by the Government will “not understand the right to remain silent, and [will] be compelled by answering to subject himself to criminal liability.” Ibid. In the Court of Appeals’ view, the ineffectiveness of the prosecutor’s warning meant that “the unfairness of the procedure remained undissipated, and due process requires the testimony be suppressed.” Id., at 579'.

Following our decision in United States v. Mandujano, 425 U. S. 564 (1976), we granted certiorari. 426 U. S. 905 (1976). We now reverse.

(3)

Under findings which the Government does not challenge, respondent, in legal effect, was unwarned of her Fifth Amendment privilege. Resting on the finding that no effective warning was given, respondent contends that both the Fifth Amendment privilege and Fifth Amendment due process require suppression of her false testimony. As to her claim under the Fifth Amendment testimonial privilege, respondent argues that, without effective warnings, she was in effect forced by the Government to answer all questions, and that her choice was confined either to incriminating herself or lying under oath. From this premise, she contends that such testimony, even if knowingly false, is inadmissible against her as having been obtained in violation of the constitutional privilege. With respect to her due process claim, she contends, and the Court of Appeals held, that, absent warnings, a witness is placed in the dilemma of engaging either in self-incrimination or perjury, a situation so inherently unfair as to require suppression of perjured testimony. We reject both contentions.

As our holding in Mandujano makes clear, and indeed as the Court of Appeals recognized, the Fifth Amendment privilege does not condone perjury. It grants a privilege to remain silent without risking contempt, but it “does not endow the person who testifies with a license to commit perjury.” Glickstein v. United States, 222 U. S. 139, 142 (1911). The failure to provide a warning of the privilege, in addition to the oath to tell the truth, does not call for a different result. The contention is that warnings inform the witness of the availability of the privilege and thus eliminate the claimed dilemma of self-incrimination or perjury. Cf. Garner v. United States, 424 U. S. 648, 657-658 (1976). However, in United States v. Knox, 396 U. S. 77 (1969), the Court held that even the predicament of being forced to choose between incriminatory truth and falsehood, as opposed to refusing to answer, does not justify perjury. In that case, a taxpayer was charged with filing false information on a federal wagering tax return. At the time of the offense, federal law commanded the filing of a tax return even though' the effect of that requirement, in some circumstances, was to make it a crime not to supply the requested information to the Government. To justify the deliberate falsehood contained in his tax return, Knox, like respondent here, argued that the false statements were not made voluntarily, but were compelled by the tax laws and therefore violated the Fifth Amendment. The Court rejected that contention. Although it recognized that tax laws which compelled filing the returns injected an “element of pressure into Knox’s predicament at the time he filed the forms,” id., at 82, the Court held that by answering falsely the taxpayer took “a course that the Fifth Amendment gave him no privilege to take.” Ibid.

In this case respondent stands in no better position than Knox; her position, in fact, is weaker since her refusal to give inculpatory answers, unlike Knox, would not have constituted a crime. It follows that our holding in Mandujano, that the Fifth Amendment privilege does not protect perjury, is equally applicable to this case.

(4)

Respondent also relies on the Court of Appeals’ holding that the failure to inform a prospective defendant of the constitutional privilege of silence at the time- of a grand jury appearance is so fundamentally unfair as to violate due process. In the Court of Appeals’ view, the Government’s conduct in this case, although in good faith, so thwarted the adversary model of our criminal justice system as to require suppression of the testimony in any subsequent perjury case based on the falsity of the sworn statement. We disagree.

First, the “unfairness” urged by respondent was also present in the taxpayer’s predicament in Knox, yet the Court there found no constitutional infirmity in the taxpayer’s conviction for making false statements on his returns. Second, accepting, arguendo, respondent’s argument as to the dilemma posed in the grand jury procedures here, perjury is nevertheless not a permissible alternative. The “unfairness” perceived by respondent is not the act of calling a prospective defendant to testify before a grand jury but rather the failure effectively to inform a prospective defendant of the Fifth Amendment privilege, Thus, the core of respondent’s due process argument, and of the Court of Appeals’ holding, in reality relates to the protection of values served by the Fifth Amendment privilege, a privilege which does not protect perjury.

Finally, to characterize these proceedings as “unfair” by virtue of inadequate Fifth Amendment warnings is essentially to say that the Government acted unfairly or oppressively by asking searching questions of a witness uninformed of the privilege. But, as the Court has consistently held, perjury is not a permissible way of objecting to the Government’s questions. “Our legal system provides methods for challenging the Government’s right to ask questions — lying is not one of them.” (Footnote omitted.) Bryson v. United States, 396 U. S. 64, 72 (1969); United States v. Mandujano, 425 U. S., at 577, 585 (Brennan, J., concurring in judgment); id., at 609 (Stewart, J., concurring in judgment). Indeed, even if the Government could, on pain of criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to answer falsely. United States v. Knox, supra, at 82-83. If the citizen answers the question, the answer must be truthful.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      In United States v. Mandujano, 425 U. S. 564 (1976), we held that false testimony by a grand jury witness suspected by federal prosecutors of criminal involvement was admissible in a subsequent perjury trial. Although the witness in Mandujano had been warned of the Fifth Amendment privilege, the Court of Appeals had mandated suppression of the perjurious testimony on the ground that the witness had not been provided with full Miranda warnings. In this Court, three separate opinions expressed varying reasons, but all eight participating Justices agreed that the perjured testimony was improperly suppressed.

       The prosecutor gave respondent the following warnings:
      “You . . . need not answer any question which you feel may ... incriminate you. . . . [Y]ou [have] the right to refuse to answer any question which you feel might incriminate you. ... [I]f you do give an answer, that answer may be used against you in a subsequent criminal prosecution, if in fact the Government should decide to prosecute you for any crime. . . .' You also have the right to consult with an attorney prior to answering any question here today. ... [I]f you cannot afford an attorney, ... we would see that an attorney is afforded to represent you. ... [I]f you do answer any questions and should you knowingly give any false testimony, or false answers to any questions, you would be subject to prosecution for the crime of perjury under the Federal Laws.” 2 Tr. 52-53.

       The District Court found, however, that respondent understood the oath and the consequences of giving false testimony, and that she understood the questions that were asked of her. Thus, no issue regarding the due process consequences, if any, of the absence of either factor was addressed by the District Court or the Court of Appeals.

       The Court of Appeals rejected respondent’s argument that the Fifth Amendment privilege required suppression. The court held:
      “[T]he privilege against self-incrimination does not afford a defense to a witness under compulsion who, rather than refusing to answer (or, if improperly compelled to answer, giving incriminating answers), gives false testimony.” 553 F. 2d 576, 577.

       Knox filed the false return prior to this Court’s decisions in Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968).

       The Court of Appeals did not suggest why, assuming a due process violation had occurred, suppression of respondent's testimony was constitutionally required.

       Cf. United States v. Mandujano, 425 U. S., at 594-598 (Brennan, J., concurring in judgment).

       There is no constitutional prohibition against summoning potential defendants to testify before a grand jury. United States v. Dionisio, 410 U. S. 1, 10 n. 8 (1973); United States v. Mandujano, supra, at 584 n. 9, 594 (Brennan, J., concurring in judgment). The historic availability of the Fifth Amendment privilege in grand jury proceedings, Counselman v. Hitchcock, 142 U. S. 547 (1892), attests to the Court’s recognition that potentially incriminating questions will frequently be asked of witnesses subpoenaed to testify before the grand jury; the very purpose of the inquiry is to ferret out criminal conduct, and sometimes potentially guilty persons are prime sources of information.


author: Mb. Chief Justice Burger Mr. Justice Brennan,

text:
    UNITED STATES v. WASHINGTON
    No. 74-1106.
    Argued December 6, 1976
    Decided May 23, 1977

      William F. Sheehan III argued the cause for the United States. With him. on the brief were Solicitor General Bork,

      Assistant Attorney General Thornburgh, Deputy Solicitor General Frey, and Sidney M. Glazer.

      Frederick H. Weisberg argued the cause for respondent. With him on the brief were Robert M. Weinberg and Mervin N. Cherrin.

   Mb. Chief Justice Burger

delivered the opinion of the Court.

The question presented in this case is whether testimony given by a grand jury witness suspected of wrongdoing may be used against him in a later prosecution for a substantive criminal offense when the witness was not informed in advance of his testimony that he was a potential defendant in danger of indictment.

(1)

The facts are not in dispute. Zimmerman and Woodard were driving respondent’s van truck when a Washington, D. C., policeman stopped them for a traffic offense. Seeing a motorcycle in the rear of the van which he identified as stolen, the officer arrested both men and impounded respondent’s vehicle. When respondent came to reclaim the van, he told police that Zimmerman and Woodard were friends who were driving the- van with his permission.

He explained the presence of the stolen motorcycle by saying that while driving the van himself he had stopped to assist an unknown motorcyclist whose machine had broken down. Respondent then allowed the motorcycle to be placed in his van to take it for repairs. Soon after this the van stalled and he walked to a nearby gasoline station to call Zimmerman and Woodard for help, leaving the van with the unknown motorcyclist. After reaching Zimmerman by phone, respondent waited at the gasoline station for his friends, then returned to the spot he had left the van when they failed to appear; by that time the van had disappeared. Respondent said he was not alarmed, assuming his friends had repaired the van and driven it away. Shortly thereafter, Zimmerman and Woodard were arrested with the stolen motorcycle in the van.

Not surprisingly, the officer to whom respondent related this tale was more than a little skeptical; he told respondent he did not believe his story, and advised him not to repeat it in court, “because you’re liable to be in trouble if you [do so].” The officer also declined to release the van. Respondent then repeated this story to an Assistant United States Attorney working on the case. The prosecutor, too, was dubious of the account; nevertheless, he released the van to respondent. At the same time, he served respondent with a subpoena to appear before the grand jury investigating the motorcycle theft.

When respondent appeared before the grand jury, the Assistant United States Attorney in charge had not yet decided whether to seek an indictment against him. The prosecutor was aware of respondent’s explanation, and was also aware of the possibility that respondent could be indicted by the grand jury for the theft if his story was not believed.

The prosecutor did not advise respondent before his appearance that he might be indicted on a criminal • charge in connection with the stolen motorcycle. But respondent, after reciting the usual oath to tell the truth, was given a series of other warnings, as follows:

“Q----
“You have a right to remain silent. You are not required to say anything to us in this Grand Jury at any time or to answer any question.
“Anything you say can be used against you in Court.
“You have the right to talk to a lawyer for advice before we question you and have him outside the Grand Jury during any questioning.
“If you cannot afford a lawyer and want one a lawyer will be provided for you.
“If you want to answer questions now without a lawyer present you will still have the right to stop answering at any time.
“You also have the right to stop answering at any time until you talk to a lawyer.
“Now, do you understand those rights, sir?
“A Yes, I do.
“Q And do you want to answer questions of the Grand Jury in reference to a stolen motorcycle that was found in your truck?
“A Yes, sir.
“Q And do you want a lawyer here or outside the Grand Jury room while you answer those questions?
“A No, I don’t think so.”

In response to questions, respondent again related his version of how the stolen motorcycle came to be in the rear of his van. Subsequently, the grand jury indicted respondent, Zimmerman, and Woodard for grand larceny and receiving stolen property.

Respondent moved to suppress his testimony and quash the indictment, arguing that it was based on evidence obtained in violation of his Fifth Amendment privilege against compelled self-incrimination. The Superior Court for the District of Columbia suppressed the testimony and dismissed the indictment, holding that before the Government could use respondent’s grand jury testimony at trial, it had first to demonstrate that respondent had knowingly waived his privilege against compelled self-incrimination. Notwithstanding the comprehensive warnings described earlier, the court found no effective waiver had been made, holding that respondent was not properly advised of his Fifth Amendment rights. The court thought the Constitution required, at a minimum, that

“inquiry be made of the suspect to determine what his educational background is, and what his formal education is and whether or not he understands that this is a constitutional privilege and whether he fully understands the consequences of what might result in the event that he does waive his constitutional right and in the event that he does make incriminatory statements . . . .”

The court also held that respondent should have been told that his testimony could lead to his indictment by the grand jury before which he was testifying, and could then be used to convict him in a criminal prosecution.

The District of Columbia Court of Appeals affirmed the suppression order. 328 A. 2d 98 (1974). That court also took the position that “the most significant failing of the prosecutor was in not advising [respondent] that he was a potential defendant. Another shortcoming was in the prosecutor’s waiting until after administering the oath in the cloister of the grand jury before undertaking to furnish what advice was given.” Id., at 100.

(2)

The implicit premise of the- District of Columbia Court of Appeals’ holding is that a grand jury inquiry, like police custodial interrogation, is an “interrogation of persons suspected or accused of crime [that] contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him_to speak where he would not otherwise do so freely.” Miranda v. Arizona, 384 U. S. 436, 467 (1966). But this Court has not decided that the grand jury setting presents coercive elements which compel witnesses to incriminate themselves. Nor have we decided whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses; moreover, we have no occasion to decide these matters today, for even assuming that the grand jury setting exerts some • pressures on witnesses generally or on those who may later be indicted, the comprehensive warnings respondent received in this case plainly satisfied any possible claim to warnings. Accordingly, respondent’s grand jury testimony may properly be used against him in a subsequent trial for theft of the motorcycle.

Although it is well settled that the Fifth Amendment privilege extends to grand jury proceedings, Counselman v. Hitchcock, 142 U. S. 547 (1892), it is also axiomatic that the Amendment does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials. “It does not preclude a witness from testifying voluntarily in matters which may incriminate him,” United States v. Monia, 317 U. S. 424, 427 (1943), for “those competent and freewilled to do so may give evidence against the whole world, themselves included.” United States v. Kimball, 117 F. 156, 163 (CCSDNY 1902); accord, Miranda, supra, at 478; Michigan v. Tucker, 417 U. S. 433 (1974); Hoffa v. United States, 385 U. S. 293 (1966). Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. In addition-to guaranteeing the right to remain silent unless immunity is granted, the Fifth Amendment proscribes only self-incrimination obtained by a “genuine compulsion of testimony.” Michigan v. Tucker, supra, at 440. Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. Accordingly, unless the record reveals some compulsion, respondent's incriminating testimony cannot conflict with any constitutional guarantees of the privilege.

The Constitution does not prohibit every element which influences a criminal suspect to make incriminating admissions. See Garner v. United States, 424 U. S. 648 (1976), Beckwith v. United States, 425 U. S. 341 (1976); Schneckloth v. Bustamonte, 412 U. S. 218, 223-227 (1973). Of course, for many witnesses the grand jury room engenders an atmosphere conducive to truthtelling, for it is likely that upon being brought before such a body of neighbors and fellow citizens, and having been placed under a solemn oath to tell the truth, many witnesses will feel obliged to do just that. But it does not offend the guarantees of the Fifth Amendment if in that setting a witness is more likely to tell the truth than in less solemn surroundings. The constitutional guarantee is only that the witness be not compelled to give self-incriminating testimony. The test is whether, considering the totality of the circumstances, the free will of the witness was overborne. Rogers v. Richmond, 365 U. S. 534, 544 (1961).

(3)

After being sworn, respondent was explicitly advised that he had a right to remain silent and that any statements he did make could be used to convict him of crime. It is inconceivable that such a warning would fail to alert him to his right to refuse to answer any question which might incriminate him. This advice also eliminated any possible compulsion to self-incrimination which might otherwise exist. To suggest otherwise is to ignore the record and reality. Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled. Moreover, any possible coercion or unfairness resulting from a witness’ misimpression that he must answer truthfully even questions with incriminatory aspects is completely removed by the warnings given here. Even in the presumed psychologically coercive atmosphere of police custodial interrogation, Miranda does not require that any additional warnings be given simply because the suspect is a potential defendant; indeed, such suspects are potential defendants more often than not. United States v. Binder, 453 F. 2d 805, 810 (CA2 1971), cert. denied, 407 U. S. 920 (1972).

Respondent points out that unlike one subject to custodial interrogation, whose arrest should inform him only too clearly that he is a potential criminal defendant, a grand jury witness may well be unaware that he is targeted for possible prosecution. While this may be so in some situations, it is an overdrawn generalization. In any case, events here clearly put respondent on notice that he was a suspect in the motorcycle theft. He knew that the grand jury was investigating that theft and that his involvement was known to the authorities. Respondent was made abundantly aware that his exculpatory version of events had been disbelieved by the police officer, and that his friends, whose innocence his own story supported, were to be prosecuted for the theft. The interview with the prosecutor put him on additional notice that his implausible story was not accepted as true. The warnings he received in the grand jury room served further to alert him to his own potential criminal liability. In sum, by the time he testified respondent knew better than anyone else of his potential defendant status.

However, all of this is largely irrelevant, since we do not understand what constitutional disadvantage a failure to give potential defendant warnings could possibly inflict on a grand jury witness, whether or not he has received other warnings. It is firmly settled that the prospect of being indicted does not entitle a witness to commit perjury, and witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are. Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to protection of Fifth Amendment rights.

Respondent suggests he must prevail under Garner v. United States, supra. There, the petitioner was charged with a gambling conspiracy. As part of its case, the Government introduced Garner’s income tax returns, in one of which he had identified his occupation as “professional gambler,” and in all of which he had reported substantial income from wagering. The Court recognized that Garner was indeed compelled by law to file a tax return, but held that this did not constitute compelled self-incrimination. The Court noted that Garner did not claim his Fifth Amendment privilege, instead making the incriminating disclosure that he was a professional gambler. Garner holds that the Self-Incrimination Clause is violated only when the Government compels disclosures which it knows will incriminate the declarant — that is, only when it intentionally places the individual under “compulsions to incriminate, not merely compulsions to make unprivileged disclosures.” 424 U. S., at 657. But the distinction between compulsion to incriminate and compulsion to disclose what the Government is entitled to know is of no help to respondent; in this case there was no compulsion to do either.

In Beckwith v. United States, decided shortly after Garner, we reaffirmed the need for showing overbearing compulsion as a prerequisite to a Fifth Amendment violation. There, the Government agent interrogated the taxpayer for the explicit purpose of securing information that would incriminate him. There, as here, the interrogation was not conducted in an inherently coercive setting; hence the claim of compelled self-incrimination was rejected.

(4) .

Since warnings were given, we are not called upon to decide whether such warnings were constitutionally required. However, the District of Columbia Court of Appeals held that whatever warnings are required are insufficient if given “in the cloister of the grand jury.” 328 A. 2d, at 100. That court gave no reason for its view that warnings must be given outside the presence of the jury, but respondent now advances two justifications. First, it could be thought that warnings given to respondent before the grand jury came too late, because of the short time to assimilate their significance, and because of the presence of the grand jurors. But respondent does not contend that he did not understand the warnings given here. In any event, it is purely speculative to attribute any such effects to warnings given in the presence of the jury immediately before taking the stand. If anything, the proximity of the warnings to respondent’s testimony and the solemnity of the grand jury setting seem likely to increase their effectiveness.

Second, respondent argues that giving the oath in the presence of the grand jury undermines assertion of the Fifth Amendment privilege by placing the witness in fear that the grand jury will infer guilt from invocation of the privilege. But this argument entirely overlooks that the grand jury’s historic role is as an investigative body; it is not the final arbiter of guilt or innocence. Moreover, it is well settled that invocation of the Fifth Amendment privilege in a grand jury proceeding is not admissible in a criminal trial, where guilt or innocence is actually at stake.

The judgment of the Court of Appeals is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, dissenting.

The general rule that a witness must affirmatively claim the privilege against compulsory self-incrimination must in my view admit of an exception in the case of a grand jury witness whom the prosecutor interrogates with the express purpose of getting evidence upon which to base a criminal charge against him. In such circumstances, even warnings, before interrogation, of his right to silence do not suffice. The privilege is emptied of substance unless the witness is further advised by the prosecutor that he is a potential defendant. Only if the witness then nevertheless intentionally and intelligently waives his right to be free from compulsory self-incrimination and submits to further interrogation should use of his grand jury testimony against him be sanctioned. As I stated in United States v. Mandujano, 425 U. S. 564, 598-600 (1976) (concurring in judgment):

“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— to suspect of committing a crime, and by use of judicial compulsion compel him to testify with regard to that crime. In the absence of such a waiver, the Fifth Amendment requires that any testimony obtained in this fashion be unavailable to the Government 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 . . . .”

In this case, although respondent Washington was advised of his rights to silence and to talk to a lawyer before he appeared before the grand jury, he was “only told that he was needed as a witness in prosecuting the two who were occupants of the van at the time of its impoundment.” 328 A. 2d 98, 100 (1974). He was never told that he was in danger of being indicted himself, even though “at the time of his grand jury appearance respondent was a potential defendant whose indictment was considered likely by the prosecution.” Ante, at 186 n. 4.

The ancient privilege of a witness against being compelled to incriminate himself is precious to free men as a shield against high-handed and arrogant inquisitorial practices. It has survived centuries of controversies, periodically kindled by popular impatience that its protection sometimes allows the guilty to escape punishment. But it has endured as a wise and necessary protection of the individual against arbitrary power, and the price of occasional failures of justice is paid in the larger interest of general personal security.

I would hold that a failure to warn the witness that he is a potential defendant is fatal to an indictment of him when it is made unmistakably to appear, as here, that the grand jury inquiry became an investigation directed against the witness and was pursued with the purpose of compelling him to give self-incriminating testimony upon which to indict him. I would, further hold that without such prior warning and the witness’ subsequent voluntary waiver of his privilege, there is such gross encroachment upon the witness’ privilege as to render worthless the values protected by it unless the self-incriminating testimony is unavailable to the Government for use at any trial brought pursuant to even a valid indictment.

It should be remarked that, of course, today’s decision applies only to application of the privilege against self-incrimination secured by the Fifth Amendment to the United States Constitution. The holding does not affect the authority of state courts to construe counterpart provisions of state constitutions — even identically phrased provisions — “to give the individual greater protection than is provided” by the federal provision. State v. Johnson, 68 N. J. 349, 353, 346 A. 2d 66, 67-68 (1975). See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

A number of state courts have recognized that a defendant or potential defendant called before a grand jury is privileged against the State’s using his self-incriminating testimony to procure an indictment or using it to introduce against him at trial, even in the absence of an affirmative claim of his privilege against self-incrimination. See, e. g., People v. Laino, 10 N. Y. 2d 161, 176 N. E. 2d 571 (1961); State v. Fary, 19 N. J. 431, 437-438, 117 A. 2d 499, 503 (1955); Taylor v. Commonwealth, 274 Ky. 51, 118 S. W. 2d 140 (1938); State v. Corteau, 198 Minn. 433, 270 N. W. 144 (1936); Culbreath v. State, 22 Ala. App. 143, 113 So. 465 (1927). See additional cases in Annot., Privilege Against Self-incrimination as to Testimony before Grand Jury, 38 A. L. R. 2d 225, 290-294 (1954). One court has specifically held that interrogating a potential defendant “under [the] guise of examining him as to the guilt of someone else” is a violation of the defendant’s privilege against self-incrimination. People v. Cochran, 313 Ill. 508, 526, 145 N. E. 207, 214 (1924). See also Newman, The Suspect and the Grand Jury: A Need for Constitutional Protection, 11 U. Rich. L. Rev. 1 (1976); Comment, The Grand Jury Witness’ Privilege Against Self-Incrimination, 62 Nw. U. L. Rev. 207, 223 (1967); Meshbesher, Right to Counsel before Grand Jury, 41 F. R. D. 189, 191 (1966). The rationale of these decisions — which I would find applicable to the case now before us — is that where the grand jury investigation is in fact a proceeding against the witness, or even if begun as a general investigation it becomes a proceeding against the witness, the encroachment upon the witness’ privilege requires that a court deny to the prosescution the use of the witness’ self-incriminating testimony.

      With United States v. Mandujano, 425 U. S. 564 (1976), and United States v. Wong, ante, p. 174, we have settled that grand jury witnesses, including those already targeted for indictment, may be convicted of perjury on the basis of their false grand jury testimony even though they were not first advised of their Fifth Amendment privilege against compelled self-incrimination.

      2 This was an obvious overstatement of respondent’s constitutional rights; the very purpose of the grand jury is to elicit testimony, and it can compel answers, by use of contempt powers, to all except self-incriminating questions.
      After the oral warnings, respondent was also handed a card containing all the warnings prescribed by Miranda v. Arizona, 384 U. S. 436 (1966), and a waiver form acknowledging that the witness waived the privilege against compelled self-incrimination. Respondent signed the waiver.

       The Court of Appeals declined to dismiss the indictment, however, relying on a line of cases in this Court holding that an indictment returned by a properly constituted grand jury is not subject to challenge on the ground that it was based on unconstitutionally obtained evidence. See United States v. Calandra, 414 U. S. 338 (1974); United States v. Blue, 384 U. S. 251 (1966); Lawn v. United States, 355 U. S. 339 (1958). Respondent’s cross-petition seeking review of this portion of the Court of Appeals’ ruling was denied, 426 U. S. 905 (1976), and the validity of the indictment is not an issue in this case.

       Though both courts below found no effective waiver of Fifth Amendment rights, neither court found, and no one suggests here, that respondent’s signing of the waiver-of-rights form was involuntary or was made without full appreciation of all the rights of which he was advised. The Government does not challenge, and we do not disturb, the finding that at the time of his grand jury appearance respondent was a potential defendant whose indictment was considered likely by the prosecution.

       In Miranda, the Court saw as inherently coercive any police custodial interrogation conducted by isolating the suspect with police officers; therefore, the Court established a per se rule that all incriminating statements made during such interrogation are barred as “compelled.” All Miranda’s safeguards, which are designed to avoid the coercive atmosphere, rest on the overbearing compulsion which the Court thought was caused by isolation of a suspect in police custody. See Oregon v. Mathiason, 429 U. S. 492 (1977); Beckwith v. United States, 425 U. S. 341 (1976); Garner v. United States, 424 U. S. 648, 653-654 (1976); Michigan v. Tucker, 417 U. S., at 444.

       Although the District of Columbia Court of Appeals rested its holding solely on the Self-Incrimination Clause of the Fifth Amendment, respondent urges the Fifth Amendment Due Process Clause. He contends it is fundamentally unfair to elicit incriminating testimony from a potential defendant without first informing him of his target status. This, it is argued, would alert the witness more pointedly so as to enable him to decide whether to invoke the privilege against compelled self-incrimination. This line of argument simply restates respondent’s claims under the Self-Incrimination Clause and is rejected for the same reasons. Moreover, there is no evidence of any governmental misconduct which undermined the fairness of the proceedings.

      Of course, it is still open to the District of Columbia Court of Appeals, under its supervisory powers, on remand to order and enforce compliance with what it considers proper procedures before the grand jury, Ristaino v. Ross, 424 U. S. 589, 597 n. 9 (1976); United States v. Jacobs, 547 F. 2d 772 (CA2 1976), cert. pending, No. 76-1193.