Constitutional Law - Applicability of the Fifth Amendment to the Federal Constitution to State Proceedings

Similar documents
Constitutional Law - Judicial Review - Legalized Gambling - Louisiana State Racing Commission

Conflict of Laws - Jurisdiction Over Foreign Corporations - What Constitutes Doing Business

Criminal Procedure - Pleas of Guilty Not Responsive to Bill of Information - Right of State to Correct Proceedings

Criminal Procedure - Comment on Defendant's Failure to Testify

Conflict of Laws - Jurisdiction Over Nonresidents - Constructive Service in Tort Action Arising Outside the State

Criminal Procedure - Right to Bill of Particulars After Arraignment

Mineral Rights - Interpretation of Lease - Effect of Signing a Division Order

States - Amenability of State Agency to Suit

Corporations - Voting Rights - Classification of Board to Defeat Cumulative Voting

Public Law: Criminal Law

Criminal Procedure - Court Consent to Plea Bargains

Criminal Law - Article 27 of the Criminal Code - Attempted Perjury

Purpose and Extent of the Attorney-Client Privilege in Louisiana

Public Law: Local Government Law

Judicial Mortgage Rights: Recordation of Non- Executory Judgments

Public Law: Bankruptcy

Natural Gas Act - Changes in Rates Under Section 4(d)

Criminal Procedure - Three-Year Prescription on Indictments

Criminal Procedure - Short Form Indictment - Constitutionality

Jurisdiction in Personam Over Nonresident Corporations

Conflict of Laws - Jurisdiction of State Courts - Forum Non Conveniens

Evidence - Unreasonable Search and Seizure - Pre- Trial Motion To Suppress

Louisiana Practice - Waiver of Right to Claim Abandonment

Criminal Law - Bribery of a Public Officer

Adjective Law - Evidence: Evidence

SUPREME COURT OF ALABAMA

Evidence - Applicability of Dead Man's Statute to Tort Action

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Criminal Procedure - Defense of Insanity - An Appraisal of State v. Watts

Remission of Debt - Donation Not in Authentic Form

Follow this and additional works at: Part of the Constitutional Law Commons

The Assignment of Error

Obligations - Offer and Acceptance

No. 44,058-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * *

Guilty Pleas, Jury Trial, and Capital Punishment

AUGUST 24, 2016 STATE OF LOUISIANA NO KA-0104 VERSUS COURT OF APPEAL GREGORY J. GRANT, JR. FOURTH CIRCUIT STATE OF LOUISIANA * * * * * * *

Criminal Procedure - New Trial for Newly Discovered Evidence

Evidence - Prejudicial Effects of Unanswered Question

Criminal Law - Insanity - Burden of Proof

Prescription of Criminal Prosecutions in Louisiana

Criminal Law - The Felony Manslaughter Doctrine in Louisiana

Leary v. United States: Marijuana Tax Act - Self- Incrimination

Constitutional Law - Search and Seizure - Hot Pursuit

Donations - Revocation For Non-Fulfillment of Condition

Rendition of Judgements

Labor Law - Unfair Labor Practices - Union Duty to Bargain in Good Faith - "Harassing Tactics"

Civil Code and Related Subjects: Obligations

Libel and Slander - Limitation of Actions - Single Publication Rule

Union Enforcement of Individual Employee Rights Arising from a Collective Bargaining Contract

IN THE SUPREME COURT OF FLORIDA DISCRETIONARY REVIEW OF DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Louisiana Practice - Effect of Application for Supervisory Writs on Trial Court Proceedings

Criminal Law - Misappropriation of Funds of a Commercial Partnership by One of the Partners

Criminal Law - Felony-Murder - Killing of Co- Felon

Criminal Law - Simple Rape as a Responsive Verdict Under an Indictment for Aggravated Rape

Criminal Law - Intoxication and Specific Intent in Homicide Prosecution

Civil Code and Related Legislation: Successions and Donations

Joinder of Criminal Offenses in Louisiana

Civil Procedure - Abandonment of Suit

Attorney's Fees: A New Risk in Payment Under Protest Suits

Partition - The Effect of R.S.13:4985 On Partititons Made Without Representation of All Co-Owners

Security Devices - Mortgages on Immovables - When Effective Against Third Persons

Criminal Law - Contributing to the Delinquency of Minors - Adjudgment of Minor as Delinquent as a Prerequisite

Public Law: Expropriation

Bankruptcy - Unrecorded Federal Tax Liens - Rights of a Trustee Under Section 70c of the Bankruptcy Act

Civil Code and Related Subjects: Negotiable Instruments and Banking

Civil Procedure - Filing Suit In Court of Incompetent Jurisdiction

Immunity Agreement -- A Bar to Prosecution

Forum Juridicum: The Unauthorized Practice of the Law

Private Law: Property

Reservation of Rights to Personal Jurisdiction

Commercial Law: Negotiable Instruments

Corporations - Right of a Stockholder to Inspect the Corporate Books

Louisiana Practice - Appellate Jurisdiction in Questions of Unconstitutionality or Illegality of Taxes

Trusts - The Usufruct In Trust

Constitutional Law - Fifth Amendment Privilege Against Self-Incrimination - Disbarment Proceedings

Oral Argument - A New Constitutional Right?

Volume 34, December 1959, Number 1 Article 12

Mineral Rights - Mineral Reservations In Sales of Land to the United States

Post Conviction Guilty Plea Withdrawals

State v. Barnes - Procedural Technicalities or Justice?

Torts - Duty of Occupier to Social Guests

Torts - Personal Injury or Wrongful Death Suits by Child or Administrator Against Parent

Case: 5:16-cv JMH Doc #: 11 Filed: 07/20/16 Page: 1 of 9 - Page ID#: 58

Private Law: Criminal Law

Corporate Law - Restrictions on Alienability of Stock

Civil Procedure - Reconventional Demand - Amount in Dispute

No. 45,202-CA No. 45,203-CA No. 45,204-CA. (Consolidated cases) COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * Versus * * * * *

IN THE SUPREME COURT OF FLORIDA

Constitutional Law - Elections - Power of Congress to Regulate Primary Elections

Ph: (662) REPLY BRIEF FOR APPELLANT MSB_. Attorney for Appellant IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO KP-OI373 APPELLANT

Labor Law - Conflict Between State Anti-Trust Law and Collective Bargaining Agreement

Case 1:13-cv EGS Document 89 Filed 06/07/16 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Criminal Procedure - Prescription of Prosecutions - Commencement of the Prescriptive Period

No IN THE SUPREME COURT OF THE UNITED STATES JOHN LEE HANEY, PETITIONER UNITED STATES OF AMERICA

Louisiana Constitution, Article VIII: Education

Sales - Litigious Redemption - Partial Transfer

Constitutional Law - The Sixth Amendment Right to Confrontation of Witnesses as Applicable to the State Through the Fourteenth Amendment

Appellate Review in Bifurcated Trials

Criminal Neglect of Family

IN THE INDIANA COURT OF APPEALS. No. 15A PC-2889 STATE S BRIEF OF APPELLEE

Transcription:

Louisiana Law Review Volume 16 Number 2 The Work of the Louisiana Supreme Court for the 1954-1955 Term February 1956 Constitutional Law - Applicability of the Fifth Amendment to the Federal Constitution to State Proceedings Robert J. Jones Repository Citation Robert J. Jones, Constitutional Law - Applicability of the Fifth Amendment to the Federal Constitution to State Proceedings, 16 La. L. Rev. (1956) Available at: http://digitalcommons.law.lsu.edu/lalrev/vol16/iss2/28 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kayla.reed@law.lsu.edu.

LOUISIANA LAW REVIEW [Vol. XVI If under the due process clause a state would be allowed to assume jurisdiction over a foreign corporation under the facts of the instant decision, the question arises as to whether the Louisiana courts would be disposed to do so. The Louisiana legislature has not defined the term "doing business. '2 4 The criterion as imposed by the Louisiana Supreme Court was that "when a foreign corporation transacts a substantial part of its ordinary business in a state, it is doing, transacting, and carrying on or engaging in business therein. '2 5 However, subsequent to the International Shoe Co. case, the Louisiana legislature added a provision to the service of process act 26 providing for service on a foreign corporation not required by law to appoint an agent but that has engaged in business activities in Louisiana through acts performed by its employees or agents. It has been suggested that this provision would permit the Louisiana courts to entertain all suits against foreign corporations on local causes of action permissible under the International Shoe Co. case. 27 It is submitted that the Louisiana courts, if faced with the facts of the instant case, could justifiably hold that the defendant did engage in business activities within the meaning of the statute thus subjecting the corporation to service of process within Louisiana. John M. Shaw CONSTITUTIONAL LAW - APPLICABILITY OF THE FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION TO STATE PROCEEDINGS In an investigation before the Orleans Parish Grand Jury of a public bribery charge, defendant refused to answer certain questions and was convicted of contempt of court. Having served his sentence, defendant was propounded the identical questions and again refused to answer, invoking the privilege against selfincrimination provided by article 1, section 11, of the Louisiana Constitution and the fifth amendment to the United States Constitution. As the basis for invocation of the privilege against self-incrimination, defendant contended that to compel him to 24. See Proctor Trust Co. v. Pope, 12 So.2d 724, 727 (La. App. 1943). 25. R. J. Brown Co. v. Grosjean, 189 La. 778, 783, 180 So. 634, 636 (1938). 26. LA. R.S. 13:3471(5)(d) (Supp. 1954). 27. See Comment, Amenability of Foreign Corporations to Suit in Louisiana, 14 LOUISIANA LAW REVIEW 625, 636 (1954).

19561 NOTES answer would force him to disclose information which could be used against him in the United States District Court where he stood indicted for violation of certain federal gambling statutes.' The trial court again found defendant guilty of contempt, stating that the privilege against self-incrimination provided by the Louisiana Constitution is expressly denied in public bribery cases by article 19, section 13 of the Constitution and apparently holding the fifth amendment to the United States Constitution inapplicable to state proceedings. On appeal from the second conviction, held, reversed. 2 Even though the Louisiana Constitution excepts public bribery investigations from the privilege against self-incrimination, defendant is protected under the fifth amendment to the United States Constitution, since to compel defendant to answer would make information available for use against him in the pending federal proceedings. State v. Dominguez, 82 So.2d 12 (La. 1955). A privilege against self-incrimination permits a witness to refuse to answer questions propounded to him by an investigative body or court when the information sought to be obtained could serve as the basis for a subsequent prosecution of the witness. Since the pleading of the privilege hampers the investigative body or court in its attempt to ascertain information, statutes granting the privilege are usually strictly interpreted. 3 For this reason, courts are inclined to disallow an extension of the privilege to include testimony which might prove incriminatory in another jurisdiction. 4 This rule is based upon the premise that the possibility of prosecution by another jurisdiction is too remote and speculative to be within the protection of the state 1. CM STAT. 129 (1951), 26 U.S.C. 3285, 3287 (1952). 2. Justices Ilamiter, Hawthorne. and McCaleb, dissenting. 3. 8 WIGMORE. EVIDENCE 318, 2251 (2d ed. 1940). 4. Feldman v. United Stateq. 322 1.S. 487 (1944). rehearing denied, 323 U.S. 811 (1944 : V\anse v. Ulniled States, 53 F.2d 346 (2d Cir. 1932), cert. denied, 284 I.S. 661 (1931t1 ; 11 lahe v. I Ien.11-. 201 IT. S. 43 (1 906) :Hack v. Kansas,.199 U.S. 372 i 1905) Peoie v. Itlher Street Foundry & Iron Co., 211 Ill. 2:16, (16 N.E. 319 (1 1.) : Ilr,-wn v. \\'etker, 161 I1.S. 591 (1(). In tie J'eld nan case the defendlent was investigated in a stale proceeding t discover assets available for judgment debtors. In such investigations, an exception was made to the applicability of the privilege against self-incrimination, much as is done in Louisiana in investigations for bribery. The defendant, relying upon the immunity which was granted by state law. gave testimony which was highly incriminatory. This testimony was subsequently taken into federal court to be used against the defendant. In upholding the conviction which was based largely upon the strength of that testimony, the United States Supreme Court said: "The state... could not prevent the testimony given by the party in the State proceeding from being used against the same person in a Federal court for a violation of the Federal statute.

LOUISIANA LAW REVIEW [Vol. XVI privilege. 5 However, when the remoteness and speculativeness are removed, as when the witness is under indictment in another jurisdiction, the state-granted privilege has been extended to protect the witness. 0 The Louisiana courts have followed this rule in interpreting the privilege against self-incrimination granted by the Louisiana Constitution. 7 However, that document expressly denies the right to invoke the privilege in cases involving public bribery. 8 The question of the right to plead the privilege granted by the fifth amendment to the United States Constitution where the state privilege has been withdrawn had never been presented to a Louisiana court before the instant case. Prior to the instant case, the Louisiana court had simply followed the majority rule and found that the fifth amendment had no application to state proceedings. 9 In the instant case, since investigations for bribery are specifically excepted from Louisiana's privilege against self-incrimination, the court found that the defendant's refusal to testify was not justified by the Louisiana Constitution. 10 The court decided, however, that the fifth amendment to the United States Constitution furnishes protection in the case where a witness has been indicted in a federal court for violation of a federal statute, even when the witness' right to invoke the privilege is in contest in a state court." As authority for this conclusion, the court cited the cases of People v. Denuyl, 12 Mitchell v. Kelley,' 8 and State ex rel. Doran v. Doran.1 4 These cases, how- 5. The "practical reason" for this rule was that it would require an "encyclopedic analysis of any laws in the world, which is impracticable." WIGMoB. Evi- DENCE 372 (Students' ed. 1935). 6. People v. Denuyl, 318 Mich. 645, 29 N.W.2d 284 (1947). This rule was adopted in Louisiana in the case of State ex rel. Doran v. Doran, 215 La. 151, 39 So.2d 894 (1949). 7. State v. Rodrigues, 219 La. 217, 52 So.2d 756 (1951) ; State ex rel. Doran v. Doran, 215 La. 151, 39 So.2d 894 (1949). 8. LA. CONS'r. art. XIX, 13. But an immunity from prosecution based upon any evidence given under this rule is granted in its stead. See LA. R.S. 14:121, 15:468 (1950). 9. State v. Rodrigues, 219 La. 217, 52 So.2d 756 (1951). This case arose under circumstances similar to those of the instant case except that the danger of future prosecution arose not from federal courts but from the courts of this state. The court expressly rejected the proposition that the fifth amendment could protect defendant in a state proceeding and upheld the constitutionality of article XIX, 13, although a complete immunity is not therein granted. 10. 82 So.2d 12, 16 (La. 1955). 11. Id. at 20. 12. 318 Mich. 645, 29 N.W.2d 284 (1947). 13. 71 So.2d 887 (Fla. 1954). 14. 219 La. 217, 52 So.2d 756 (1951).

1956] NOTES ever, dealt not with the application of the fifth amendment to state proceedings, but rather with the extension of state-granted privileges to protect witnesses who were in imminent danger of prosecution in other jurisdictions. 15 Since the Louisiana privilege admittedly could not be applied in the instant case, the cited cases have no application. The decision in the instant case, therefore, seems to be without precedent in the jurisprudence of this state. Although the court did not expressly state that the privilege afforded by the fifth amendment may be generally applicable to proceedings of the Louisiana courts, the recognition of the federal privilege where the similar privilege afforded by the Louisiana Constitution has been expressly withdrawn seems to present strong support for this conclusion. The result of the instant case is to render ineffective the exception provided in the Louisiana Constitution relating to bribery cases and to permit invocation of the fifth amendment to the United States Constitution whenever a witness stands indicted in a federal court. Although a repetition of the facts of the instant case would be fortuitous, the decision does seem to indicate that our court has taken a far more liberal attitude than has been taken by the courts of the federal and other state systems. Robert J. Jones CONSTITUTIONAL LAW - JUDICIAL REVIEW - LEGALIZED GAMBLING - LOUISIANA STATE RACING COMMISSION The Louisiana State Racing Commission granted Magnolia Park, Inc., permission to conduct harness racing in Jefferson Parish and licensed it to conduct pari-mutuel wagering as part of the operation of the track. Plaintiffs, property owners in Jefferson Parish, brought suit to force revocation of the license and to obtain temporary and permanent injunctions prohibiting the pari-mutuel wagering. They alleged that the statutes which 15. People v. Denuyl dealt with the application of MICH. CONST. art. 2, 16, and expressly stated that the opinion assumed that "the Fifth Amendment to the Federal Constitution... does not apply to prosecution under State Laws." Mitchell v. Kelley applied FLA. CONST. 12 (declaration of rights). State ex rel. Doran v. Doran applied only LA. CONST. art. I, 11.