440 U.S. 450 (1979)
In the early 1970s Joseph Portash served as Mayor of Manchester Township, Executive Director of the Pinelands Environmental Council, and a member of both the Ocean County Board of Freeholders and the Manchester Municipal Utilities Authority in New Jersey.1
In November 1974, after a lengthy investigation, a state grand jury subpoenaed Portash.2 He expressed an intention to claim his privilege against compulsory self-incrimination.3 The prosecutors and Portash’s lawyers then agreed that, if Portash testified before the grand jury, neither his statements nor any evidence derived from them could be used in subsequent criminal proceedings, except in prosecutions for perjury or false swearing.4
After Portash’s testimony the parties tried to come to an agreement to avoid a criminal prosecution against him, but no bargain was reached.5 In April 1975 Portash was indicted for misconduct in office and extortion by a public official.6 Before trial defense counsel sought a ruling from the trial judge that no use of the immunized grand jury testimony would be permitted.7 The judge refused to rule that the prosecution could not use this testimony for purposes of impeachment.8
After the completion of the State’s case defense counsel renewed the request for a ruling.9 There followed an extended colloquy.10 The judge finally ruled that if Portash testified and gave an answer on direct or cross-examination which was materially inconsistent with his grand jury testimony, the prosecutor could use that testimony in his cross-examination of Portash.11 Defense counsel then stated that because of this ruling he would advise his client not to take the stand.12 Portash did not testify, and the jury ultimately found him guilty on one of the two counts.13
The New Jersey Appellate Division reversed the conviction.14 The New Jersey Supreme Court denied the State’s petition for certification of an appeal.15 The Supreme Court of the United States granted certiorari.16
Whether a defendant who did not take the witness stand may invoke the Fifth Amendment privilege against compulsory self-incrimination to challenge a trial court's advance ruling that his immunized grand jury testimony could be used to impeach him?17
Federal law permits a defendant to raise a Fifth Amendment claim without taking the stand when state courts have decided the federal constitutional question on the merits and the Article III case or controversy requirement is satisfied.18
Yes. The established facts show that in the early 1970s Joseph Portash served as Mayor of Manchester Township and held other public offices in New Jersey.19 In November 1974 a state grand jury subpoenaed Portash after a lengthy investigation.20 He expressed an intention to claim the privilege against self-incrimination. Prosecutors and defense counsel agreed that his testimony would receive use immunity except in perjury prosecutions.21 After no bargain was reached, Portash was indicted in April 1975 for misconduct in office and extortion.22 Before and during trial the judge ruled that immunized grand jury testimony could be used to impeach material inconsistencies, prompting defense counsel to advise Portash not to testify.23 The jury convicted him on one count.24 The New Jersey Appellate Division reversed on federal constitutional grounds.25 The Supreme Court granted certiorari.26
This record demonstrates that the state courts resolved the federal issue on the merits without requiring Portash to take the stand, satisfying federal jurisdictional standards.27 Because the state procedure allowed review of the advance ruling, federal law does not bar consideration of the claim even though Portash never testified.28
A defendant who did not take the witness stand may invoke the Fifth Amendment privilege against compulsory self-incrimination to challenge the trial court's advance ruling.29
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Joined by The Chief Justice
Justice Blackmun dissented on the ground that the dispute remained too remote and speculative to support Article III jurisdiction.30 He emphasized that Portash never took the stand, never gave inconsistent answers, and never faced actual impeachment, so no concrete injury to a federal right occurred.31 Blackmun argued that the majority's approach allowed adjudication of a hypothetical ruling and permitted the defendant to obtain a favorable federal decision on an issue not even pressed at trial.32
He would have required an actual attempt by the State to use the immunized testimony before reaching the merits.33 He warned that the decision invited manufactured constitutional challenges and removed disputes from the factual context needed to sharpen issues.34
Whether the Fifth and Fourteenth Amendments prohibit the use of a person's immunized grand jury testimony to impeach his credibility as a testifying defendant in a later criminal trial?35
The Fifth and Fourteenth Amendments prohibit any criminal trial use of testimony compelled by a grant of immunity, including impeachment, because such testimony is coerced in its most pristine form and no balancing of interests is permissible, unlike the use of statements taken in violation of Miranda that were not themselves compelled.36
Yes. The established facts establish that Portash testified before the grand jury only after the prosecutors and his lawyers agreed that neither his statements nor any derived evidence could be used in later criminal proceedings, except for perjury or false swearing.37 This statutory immunity rendered the testimony the essence of coerced testimony.38 Portash was subpoenaed and faced contempt sanctions if he refused to speak.39 After indictment the trial court nevertheless ruled that the immunized testimony could be used to impeach material inconsistencies on direct or cross-examination.40 Because the Fifth Amendment protects against compelled self-incrimination rather than merely unreliable statements, and because any criminal trial use of involuntary statements denies due process, the immunized testimony cannot be admitted for impeachment.41
The distinction from Harris v. New York and Oregon v. Hass is decisive.42 Those cases involved statements not claimed to be coerced, whereas here the compulsion is undeniable and balancing is impermissible.43 The New Jersey Appellate Division correctly held that the immunity must be coextensive with the privilege, leaving the defendant in the same position as if the privilege had been honored.44
The Fifth and Fourteenth Amendments prohibit the use of a person's immunized grand jury testimony to impeach his credibility as a testifying defendant in a later criminal trial.45
Related opinions on this issue
Justice Brennan concurred in the judgment while expressing reservations that the Appellate Division decision may rest on independent and adequate state grounds.46 He noted that New Jersey's immunity statute is self-executing and that state courts have held the state privilege against self-incrimination may impose stricter standards than federal law requires.47 Brennan observed that the Appellate Division began its opinion by reciting the state statute and framed the question as whether the State must honor its statutory promise not to use the compelled testimony.48
Although he joined the federal constitutional holding, Brennan stressed that interpretations of the Fifth Amendment serve at most as guidance for New Jersey's construction of its own statute.49
Justice Powell concurred and added that the preferred method for raising such claims would be for the defendant to take the stand and appeal any subsequent conviction after the prosecutor attempted impeachment.50 He agreed, however, that because this is a state case in which the New Jersey Appellate Division accepted the procedure and treated the constitutional question as properly presented, the Court could reach the merits.51 Powell underscored that the compulsion here constituted a classic case of compelling a defendant to be a witness against himself, and that the Fifth Amendment protects against more than the use of false statements.52
It prohibits a State from using compulsion to extract truthful information for later use in obtaining a conviction.53