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13

Indeed, it seems obvious that a de facto defendant's privilege is placed in much greater jeopardy than that of a de jure defendant, who has at least been informed of the charges against him and is more likely to have consulted with counsel and thereby have been made aware of his privilege. In re Kelly, 350 F. Supp. 1198, 1202 (ED Ark. 1972).

Even more serious, the use by prosecutors of the tactic of calling a putative defendant before a grand jury and interrogating him regarding the transactions and events for which he is about to be indicted is, in the absence of an "intentional relinquishment or abandonment" of his "known" privilege against compulsory self-incrimination, Schneckloth v. Bustamonte, 412 U. S. 218, 235 (1973); Johnson v. Zerbst, 304 U. S. 458, 464 (1938), a blatant subversion of the fundamental adversary principle-that the State "establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation." Watts v. Indiana, 338 U. S., at 54. Where such prosecutorial tactics are employed, it borders on the absurd to say, as is said in justification of the Monia dictum, that the "government... may assume that its compulsory processes are not eliciting" incriminating information, Garner, - U. S., at Rather, it is clear beyond question that the government is "acutely aware of the potentially incriminatory nature of the disclosures sought," id., at, and thus one cannot avoid the conclusion that in condoning resort to such tactics, the courts become partners in "undermin[ing]" the "adversary system of criminal justice" by allowing prosecutors "deliberately [to seek] to avoid the burdens of independent investigation by compelling self-incriminating disclosures." Id., at -. Such tactics by prosecutors are exemplars of the very evils sought to be

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prevented by the enshrinement of the Fifth Amendment privilege in the Constitution." In giving those tactics our stamp of approval we turn our backs on our recognition heretofore that it is crucial that courts "be 'alert to repress' any abuses of the investigatory power invoked, bearing in mind that . . . 'the most valuable function of the grand jury. . . [has been] not only to examine into the commission of crimes, but to stand between the prosecutor and accused."" Hoffman v. United States,

341 U. S. 479, 485 (1951). "[A] defendant's right not to be compelled to testify against himself at his own trial might be practically nullified if the prosecutor could previously have required him to give evidence against himself before a grand jury." Michigan v. Tucker, 417 U. S. 433, 441 (1974).

C

Thus, 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 15-to suspect committed a crime, and

14 "It was historically this situation [the preliminary inquisition of one not yet charged with an offense] which gave rise to the privilege. The system of 'inquisition,' properly so called, signifies an examination on mere suspicion, without prior presentment, indictment, or other formal accusation . . . ; and the contest for one hundred years. centered solely on the abuse of such a system." 8 Wigmore on Evidence § 2251, at 295 n. 1 (McNaughton rev. ed. 1961).

15 Others have argued for a rule which would combine objective elements with the prosecutor's subjective intent subsequently to charge the individual by indictment. See United States v. Scully, 225 F. 2d 113, 117 (CA2), cert. denied, 350 U. S. 897 (1955) (Frank, J., concurring in the judgment). But this subjective intent requirement may pose grave administrative difficulties, see United States v. Grossman, 154 F. Supp. 813, 817 (NJ 1957), whereas the purely

UNITED STATES v. MANDUJANO

15

by use of judicial compulsion compel him to testify with regard to that crime.16 In the absence of such a waiver, the Fifth Amendment requires that any testimony ob

objective standard is easily manageable both for the prosecutor at the point of decision to call an individual suspect before the grand jury, and for the reviewing court. Clearly it costs the prosecutor nothing in terms of constitutionally permissible criteria to resolve any doubts in favor of warning the witness. I would at present leave open the proper answer to the case of a witness called to testify in the absence of probable cause, but whose testimony thereafter develops a case of probable cause.

16 Cf. United States v. Wong, No. 74-1636 (CA9, Sept. 23, 1974), cert. pending No. 74-635 (Miranda warnings required for putative defendant); United States v. Washington, 328 A. 2d 98, 100 (Ct. App. D. C. 1974), cert. pending Nos. 74-1106, 74-6579 (requiring a knowing and intelligent waiver of the privilege by a "potential" defendant); United States v. Luxenberg, 374 F. 2d 241, 246 (CA6 1967) (warning concerning the privilege required for one "virtually in the position of a defendant"); United States v. Orta, 253 F. 2d 312, 314 (CA5), cert. denied, 357 U. S. 905 (1958) (knowing and intelligent waiver of privilege required for "a witness"); Stanley v. United States, 245 F. 2d 427, 434 (CA6 1957) (protection afforded a defendant in custody extended to witnesses "virtually in the position of a defendant); United States v. Pepe, 367 F. Supp. 1365, 1369 (Conn. 1973) (warning required for a "potential" defendant); In re Kelly, 350 F. Supp. 1198, 1205 (ED Ark. 1972) (warning required if "even a remote possibility of prosecution"); United States v. Kreps, 349 F. Supp. 1049, 1053-1054 (WD Wis. 1972) (Miranda warnings required for "prime suspect"); United States v. Fruchtman, 282 F. Supp. 534, 536 (ND Ohio 1968) (warning required for one "virtually in the position of a defendant"); Mattox v. Carson, 295 F. Supp. 1054, 1059 (MD Fla. 1969) (Miranda warnings required for "potential defendants"), rev'd on other grounds, 424 F. 2d 202 (CA5), cert. denied, 400 U. S. 822 (1970); United States v. Haim, 218 F. Supp. 922, 932 (SDNY 1963) (warning required for “potential" defendant); United States v. Di Grazia, 213 F. Supp. 232, 234 (ND II. 1963) (warning and execution of formal waiver required for "any witness"); United States v. Grossman, 154 F. Supp. 813, 816 (NJ 1957) (warning required at least for "target" defendant). See also Powell v. United States, U. S. App. D. C. ——, 226 F. 2d 269, 274 (1955) (serious constitutional question whether prosecutor

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tained 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, that he has a constitutional right to refuse to answer any and all questions that may tend to incriminate him, and by record evidence that the individual understood the nature of his situation and privilege prior to give testimony.

"Some courts have reasoned that because of the investigative function and inquisitorial nature of the grand jury, it cannot be burdened with affording a witness the full panoply of procedural safeguards. [However, it is because in a grand jury proceeding there is no right to other procedural safeguards that a witness should be told of his right to remain silent." In re Kelly, 350 F. Supp., at 1202.

may call before grand jury "person against whom an indictment is being sought"); United States v. Scully, 225 F. 2d 113, 116 (CA2), cert. denied, 350 U. S. 897 (1955) ("suppos[ing]" "as a matter of ethics or fair play or policy, a prosecutor would . . . refrain from calling as a witness before a grand jury any person who is de jure or de facto an accused"); id., at 117 (Frank, J., concurring in the result) (suggesting a warning for any person called whom the prosecutor intends to indict); United States v. Grunewald, 233 F. 2d 556, 576 n. 10 (CA2 1956) (Frank, J., dissenting), rev'd, 353 U. S. 391 (1957) (warning required for any witness); Connelly v. United States, 249 F. 2d 576, 581 (CA8 1957), cert. denied, 356 U. S. 921 (1958) (approving the suppression of all testimony, even in presence of warnings, after point prosecutor decided to indict); United States v. Nickels, No. 74-1153 (CA7, Sept. 12, 1974), cert. pending No. 74-735 (by implication Miranda warning required for "potential defendant"); Kitchell v. United States, 354 F. 2d 715, 720 (CA1), cert. denied, 384 U. S. 1011 (1966) (by implication warning required for person "clearly suspected"); United States v. DeSapio, 299 F. Supp. 436, 440 (SDNY 1969) (by implication warning required for "target" defendant).

UNITED STATES v. MANDUJANO

17

17

Certainly to the extent that our task is to "weigh the potential benefits" to be derived from this requirement against the "potential injury to the role and functioning of the grand jury," United States v. Calandra, 414 U. S., at 349, we must come down on the side of imposing this requirement if subversion of the adversary process is to be avoided where suspected persons are ignorant of their rights. In no way does the requirement of a knowing' waiver "interfere with the effective and expeditious discharge of the grand jury's duties," id., at 350; " or "saddle a grand jury with minitrials and preliminary showings that would . . . impede its investigation," United States v. Dionisio, 410 U. S., at 17; or "delay and disrupt grand jury proceedings," Calandra, supra, at 349. And plainly the requirements of an effective warning and an intelligent waiver by a putative defendant prior to attempts to elicit potentially incriminating information impose no onerous duty on the prosecutor. The reported decisions of the lower federal courts are replete with examples of prosecuting officials proferring such warnings as an essential element of our fundamental liberties.18 Where uncertain whether the situation re

17 It is certainly no response to argue that a de facto defendant is more likely to offer self-incriminatory testimony and thereby advance the needs of law enforcement if only he is left in ignorance of his constitutional rights. The Constitution has already made the underlying value choice and it is not this Court's to denigrate.

"No doubt the constitutional privilege may, on occasion, save a guilty man from his just deserts. It was aimed at a more farreaching evil-a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies." Ullmann v. United States, 350 U. S., at 428.

18 E. g., United States v. Wong, No. 74-1636 (CA9, Sept. 23, 1974), cert. pending No. 74-635; United States v. Nickels, No.