Knapp v. Schweitzer/Dissent Warren
Mr. Chief Justice WARREN, dissenting.
There can be no doubt that the problem in this case is a problem of federalism. Competing considerations of the greatest significance are involved. But in resolving questions that touch upon the intricate and delicate mechanism of our federal system it is especially important to remember, as Mr. Justice Holmes observed, that 'General propositions do not decide concrete cases.' Lochner v. People of State of New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937. In this case the New York courts sustained petitioner's conviction of the understanding that in the circumstances of this case the testimony petitioner was compelled to give before the New York State grand jury could not, as a matter of federal law, be employed in a subsequent federal prosecution. On the other hand, it is implicit in the majority opinion in this Court that the petitioner does run the risk of a federal prosecution based on his own testimony under Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408. If we are to have any profitable discussion of federalism based on the facts of this case, we should begin with agreement on the facts and the controlling principles. In any event, we should not affirm a New York conviction if in fact the state courts construed state law under a misconception of federal law. To do so does violence to the vital principle of federalism that a state court is the final arbiter of state law. See May v. Anderson, 345 U.S. 528, 534, 535, 73 S.Ct. 840, 843, 844, 97 L.Ed. 1221. I therefore agree with Mr. Justice BLACK that this case should be remanded so that the New York Court of Appeals can reconsider state law in light of the majority's conclusion that the role of the federal prosecutor was not such as to prevent use of the state-compelled testimony against petitioner in a federal prosecution. At all events, the unsettling influence that Feldman has had upon the course of this litigation indicates that a satisfactory solution cannot be reached without a reconsideration of that decision.
Mr. Justice BLACK, whom Mr. Justice DOUGLAS joins, dissenting.
Petitioner refused to answer questions directed to him by a New York grand jury on the ground that his answers might tend to incriminate him under both state and federal law. He was then granted immunity from prosecution under state law and ordered to answer. When he persisted in his refusal he was found guilty of contempt and sentenced to jail. In reviewing his conviction the Appellate Division of the New York Supreme Court rejected the contention that it violated both State and Federal Constitutions to punish him for declining to give testimony which might have incriminated him under federal law. 2 A.D.2d 579, 157 N.Y.S.2d 158.
Article I, § 6 of the New York Constitution, like the Fifth Amendment, provides that 'No person * * * shall be compelled in any criminal case to be a witness against himself.' The Appellate Division ruled that this state provision had not been infringed, pointing out (1) that petitioner had been granted immunity from state prosecution and (2) his answers could not be used to convict him of a federal crime since the record showed that the federal district attorney had 'cooperated' with state officers in the grand jury investigation. The New York Court of Appeals affirmed without opinion. 2 N.Y.2d 913, 161 N.Y.S.2d 437, 141 N.E.2d 825.
In affirming, this Court evidently takes the position, contrary to the Appellate Division, that whatever cooperation between federal and state officials is disclosed by this record it is not enough to bar use of petitioner's testimony in a federal prosecution. In the light of this, it seems to me that the proper course would be to vacate the judgment of the New York Court of Appeals and remand so that the courts of that State might consider petitioner's claim of privilege under the New York Constitution free from the erroneous assumption that his testimony could not be used to convict him of a federal crime. See Standard Oil Co. of California v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611. Cf. Patterson v. State of Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082; 28 U.S.C. § 2106, 28 U.S.C.A. § 2106. Otherwise petitioner will go to jail when there is at least a chance that the New York courts would not have upheld his conviction had they known, as they now do, that his state-compelled testimony could be used against him in the federal courts. 
I think it is also appropriate to say a few words here about Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, which was referred to by the Appellate Division. In that case a minority of this Court held, 4-3, that information extracted from a person by state authorities under threat of punishment could be used to convict him of a federal crime.  The passage of time has only strengthened my conviction that this result is thoroughly contrary to the guarantee of the Fifth Amendment that no person shall be compelled to be a witness against himself, at least in a federal prosecution. The untenability of the premises upon which the Court relied in Feldman has been clearly revealed in a series of penetrating law review articles by Professor J. A. C. Grant. Immunity from Compulsory Self-Incrimination in a Federal System of Government, 9 Temple L.Q. 57, 194; Federalism and Self-Incrimination, 4 U.C.L.A.Law Rev. 549, 5 id., 1. Feldman places a witness who is called before a state agency and ordered to testify in a desperate position; he must either remain silent and risk state imprisonment for contempt or confess himself into a federal penitentiary. See Marcello v. United States, 5 Cir., 196 F.2d 437. Indeed things have now reached the point, as the result of United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, Feldman, and the present case, where a person can be whipsawed into incriminating himself under both state and federal law even though there is a privilege against self-incrimination in the Constitution of each. Cf. Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561; United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. I cannot agree that we must accept this intolerable state of affairs as a necessary part of our federal system of government.
^1 In Michigan, at least, the state constitution has been interpreted as preventing state officers from compelling disclosure of facts which might tend to incriminate the witness under federal law, even though he has been granted full immunity from state prosecution. People v. Den-Uyl, 318 Mich. 645, 29 N.W.2d 284, 2 A.L.R.2d 625. Cf. State ex rel. Doran v. Doran, 215 La. 151, 39 So.2d 894.
^2 Contrast Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, where this Court ruled that an involuntary confession could not be used in a federal prosecution even though it was procured by officers of a foreign nation outside the United States. And see Ashcraft v. State of Tennessee, 322 U.S. 143, at page 155, 64 S.Ct. 921, at page 927, 88 L.Ed. 1192, where we declared that 'The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession.' It seems to me that there was at least as much coercion in Feldman as in either of these cases.