Zicarelli v. The New Jersey State Commission of Investigation

Petitioner
Joseph Arthur Zicarelli
Respondent
The New Jersey State Commission of Investigation
Petitioner's Claim
That a state commission's requirement that Zicarelli answer questions under agrant of immunity from prosecution was inconsistent with his constitutionalrights under the Fifth Amendment.
Chief Lawyer for Petitioner
Michael A. Querques
Chief Lawyer for Respondent
Andrew F. Phelan
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr. (writing for the Court), Potter Stewart, Byron R. White
Justices Dissenting
William O. Douglas, Thurgood Marshall (William J. Brennan, Jr., and William H. Rehnquist did not participate)
Place
Washington, D.C.
Date of Decision
22 May 1972
Decision
The Commission could compel Zicarelli to answer questions under a grant of immunity without violating his constitutional rights.
Significance
Zicarelli v. The New Jersey State Commission of Investigation clarified the conditions under which a witness can be compelled to give testimony.
The Fifth Amendment to the U.S. Constitution grants a witness the privilege to refuse to answer questions on the grounds that they might incriminate him.In certain situations, however, courts or investigative bodies can force a witness to testify when they grant the witness immunity from prosecution. Thiscase revolves around one such situation.
On 8 July 1969, the New Jersey State Commission of Investigation subpoenaed Joseph Arthur Zicarelli to appear and testify about organized crime, racketeering, and political corruption in the city of Long Branch. Zicarelli appearedbefore the commission on numerous occasions, several times invoking his privilege under the Fifth Amendment and refusing to answer the commission's questions. In response, the commission granted him immunity "from having such responsive answer given by him or such responsive evidence produced by him, or evidence derived therefrom used to expose him to criminal prosecution or penaltyor to a forfeiture of his estate." In other words, the commission promised it would not use Zicarelli's testimony to prosecute him, not that it would notprosecute him entirely. It then ordered him to answer the questions. Still Zicarelli refused to answer. The commission then took its grievance to the Superior Court of Mercer County. At a hearing on the matter, Zicarelli challenged the order to testify on several grounds. Chiefly he argued that full immunity from prosecution for any offense to which he might testify was required for him to be compelled to answer questions. The Superior Court of Mercer County found Zicarelli to be in contempt and ordered him incarcerated until he testified as ordered. On appeal, the Supreme Court of New Jersey affirmed this judgment. Zicarelli then took his case to the U.S. Supreme Court.
The Supreme Court Ruling
On 22 May 1972 the Supreme Court issued its decision. By a vote of 5-2, it affirmed the ruling of the Supreme Court of New Jersey. Justice Powell wrote the majority opinion, in which he was joined by Chief Justice Burger, and Justices White, Blackmun, and Stewart. Justices Douglas and Marshall filed dissenting opinions. The remaining justices, Brennan and Rehnquist, did not participate in the consideration or the decision of this case. The majority opinion held on three key points.
The Issue of Immunity
Contrary to Zicarelli's contention, the Court decided that the type of immunity granted in this case--"immunity from use and derivative use" of Zicarelli's testimony--was entirely consistent with the Fifth Amendment's privilege against self-incrimination. Therefore, even though the commission had not promised not to prosecute Zicarelli for the events about which he was being asked to testify, it could force him to testify without violating his constitutionalrights. In making this determination, the Court relied on a previous decision, in the case of Kastigar v. United States. As Justice Powell wrote:

Appellant . . . contends that while immunity from use and derivative use may suffice to secure the protection of the privilege from invasion byjurisdictions other than the jurisdiction seeking to compel testimony, thatjurisdiction must grant the greater protection afforded by transactional immunity. In Kastigar, we held that immunity from use and derivative use is commensurate with the protection afforded by the privilege, and rejected the notion that in our federal system a jurisdiction seeking to compel testimony must grant protection greater than that afforded by the privilege in orderto supplant the privilege and compel testimony. Our holding in Kastigar is controlling here.

Vagueness of the Statute
Next, the Court addressed Zicarelli's contention that the term "responsive" in the commission's grant of immunity was unconstitutionally vague and would allow the commission to decide which of Zicarelli's answers would be subject to immunity. The Court rejected this claim:

The term "responsive"in ordinary English usage has a well-recognized meaning. It is not, as appellant argues, "so vague that men of common intelligence must necessarily guessat its meaning and differ as to its application" . . . The responsiveness limitation is not a trap for the unwary; rather it is a barrier to those who would intentionally tender information not sought in an effort to frustrate andprevent criminal prosecution.

Finally, the Court dismissed Zicarelli's claim that he could not be compelledto testify because his testimony would expose him to prosecution under foreign law:

[W]e agree with the conclusion of the Supreme Court of NewJersey that appellant was never in real danger of being compelled to disclose information that might incriminate him under foreign law. Even if appellanthas international Cosa Nostra responsibilities, he could have answered thisquestion truthfully without disclosing them. Should he have found it necessary to qualify his answer by confining it to domestic responsibilities in orderto avoid incrimination under foreign law, he could have done so. To have divulged international responsibilities would have been to volunteer informationnot sought, and apparently not relevant to the Commission's investigation. We think that in the circumstances of the questioning this was clear to appellant and his counsel.

Related Cases

• Kastigar v. United States, 406 U.S. 441 (1972)