New Jersey v. Portash
440 U.S. 450, 59 L. Ed. 2d 501, 1979 U.S. LEXIS 73 (1979)
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Rule of Law:
Testimony given by a defendant under a grant of legislative immunity is the product of coercion and, under the Fifth and Fourteenth Amendments, cannot be used for any testimonial purpose, including to impeach the defendant's credibility at a subsequent criminal trial.
Facts:
- Joseph Portash was a public official in Manchester Township, New Jersey.
- In 1974, a state grand jury subpoenaed Portash as part of a lengthy investigation.
- Portash expressed his intent to claim his Fifth Amendment privilege against self-incrimination.
- Prosecutors offered Portash immunity under a New Jersey statute, which provided that his testimony could not be used against him in a subsequent criminal proceeding.
- In exchange for this grant of immunity, Portash testified before the grand jury.
- Subsequently, in April 1975, Portash was indicted for misconduct in office and extortion.
Procedural Posture:
- At his criminal trial in a New Jersey state court, Joseph Portash sought a pre-trial ruling that his immunized grand jury testimony could not be used against him.
- The trial judge ruled that if Portash testified and gave an answer materially inconsistent with his grand jury testimony, the prosecutor could use that testimony for impeachment.
- Relying on this ruling, Portash chose not to testify in his own defense.
- The jury found Portash guilty on one count.
- Portash (as appellant) appealed to the Superior Court of New Jersey, Appellate Division, which reversed the conviction, finding the trial court's ruling unconstitutional. The State of New Jersey was the appellee.
- The Supreme Court of New Jersey denied the State's petition for certification of an appeal.
- The State of New Jersey (as petitioner) successfully petitioned the U.S. Supreme Court for a writ of certiorari to review the appellate court's decision.
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Issue:
Do the Fifth and Fourteenth Amendments allow a prosecutor to use a defendant's legislatively immunized grand jury testimony to impeach his credibility if he testifies at his own criminal trial?
Opinions:
Majority - Justice Stewart
No. A defendant's immunized grand jury testimony may not be used to impeach his credibility at a subsequent criminal trial because such testimony is fundamentally compelled. The privilege against self-incrimination, guaranteed by the Fifth and Fourteenth Amendments, must be at least coextensive with the immunity that replaces it. Unlike statements taken in violation of Miranda warnings, as in Harris v. New York, testimony given under a grant of immunity is the very essence of coerced testimony, as the witness must speak or face contempt charges. The Fifth Amendment privilege is absolute against compelled self-incrimination, not just unreliable self-incrimination, so a balancing of interests is impermissible. Therefore, any testimonial use of this compelled testimony against the defendant is unconstitutional.
Concurring - Justice Brennan
Joins the majority's opinion but expresses reservations that the case should have been decided on independent and adequate state grounds. Justice Brennan suggests that the New Jersey Appellate Division's decision may have been based on its interpretation of the New Jersey immunity statute rather than the federal Constitution. If so, the Supreme Court would lack jurisdiction to review the case. However, because the majority reads the state court's opinion as resting on the Federal Constitution, he joins their disposition of the federal question.
Concurring - Justice Powell
Concurs, agreeing that compelled testimony cannot be used for impeachment. However, he notes that the preferred method for raising such a claim is for the defendant to take the stand and create a concrete factual context, which prevents defendants from creating artificial constitutional challenges. In this state case, he defers to the New Jersey court's procedural determination that the constitutional question was properly presented despite the defendant not testifying. The opinion emphasizes the critical distinction between statements that are merely unwarned (Harris) and those that are truly compelled (Portash).
Dissenting - Justice Blackmun
Disagrees, arguing that the Court lacks jurisdiction because the constitutional question is abstract and hypothetical. Since Portash never took the witness stand, his immunized testimony was never used against him, and there was no actual infringement of his federal rights. The Court is essentially rendering an advisory opinion on a remote and speculative injury. He argues that a state court cannot confer Article III jurisdiction on the Supreme Court by deciding a hypothetical question that does not constitute a live 'case or controversy'.
Analysis:
This decision establishes a critical distinction between statements obtained in violation of procedural safeguards like Miranda and testimony that is truly compelled under the Fifth Amendment. By prohibiting the use of immunized testimony for impeachment, the Court reinforced that a grant of 'use and derivative use' immunity must be coextensive with the privilege it replaces, leaving the witness in the same position as if they had remained silent. This creates a bright-line rule that protects the core of the Fifth Amendment privilege, preventing the government from using its coercive power to obtain testimony and then using that same testimony to undermine the defendant's credibility in court. The ruling limits the scope of the impeachment exception established in cases like Harris v. New York to non-coerced statements.
