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decided: October 16, 1974.



Thomas B. Rutter, Philadelphia, for appellants.

Special Judicial Investigation; William P. Stewart, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a concurring opinion in which Roberts, J., joins. Jones, C. J., filed a dissenting opinion, in which Pomeroy, J., joins. Pomeroy, J., filed a dissenting opinion, in which Jones, C. J., joins.

Author: Roberts

[ 459 Pa. Page 110]


By order of October 28, 1971, the President Judge of the Court of Common Pleas of Philadelphia authorized a special judicial investigation into unethical conduct by members of the Philadelphia bar. In the course of this investigation appellants were called before an investigating judge who was to determine whether the evidence against them warranted institution of formal charges. The investigating judge concluded that formal charges were indicated.

Appellants were then tried before a three-judge special disciplinary court. The three-judge court found that appellants had engaged in unethical conduct, specifically, by soliciting negligence cases and submitting inflated medical cost reports. Accordingly, Silverberg, Levitan, and Oxman were ordered suspended from the practice of law for one, three, and five years respectively. The hearing court stayed the orders of suspension pending this appeal.*fn1

At the formal disciplinary hearing, Oxman and Levitan testified in their own defense; they denied any wrongdoing. On cross-examination special counsel for the investigation was permitted to elicit that appellants

[ 459 Pa. Page 111]

    had claimed the privilege against self-incrimination in the preliminary proceeding before the single investigating judge.*fn2 These references to appellants' exercise of their constitutional rights were allegedly designed only to impeach their credibility. We conclude that utilization, over objection,*fn3 of appellant's assertion of the

[ 459 Pa. Page 113]

    privilege against self-incrimination violated their rights under the Fifth Amendment to the United States Constitution*fn4 and article I, section 9 of the Pennsylvania Constitution P.S.*fn5 The orders suspending appellants must be reversed*fn6 and a new disciplinary hearing held.*fn7

[ 459 Pa. Page 114]

In Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), the United States Supreme Court faced the question before us today. Defendant Halperin was accused of corruptly influencing witnesses before a federal grand jury. When called before another grand jury, he declined to answer certain questions because his answers might incriminate him. At trial he answered the same questions in a way consistent with innocence. The government was permitted, over objection, to cross-examine Halperin on his allegedly inconsistent responses. The trial judge however indicated that this cross-examination could be considered only as reflecting on the witness' credibility.*fn8

The Supreme Court reversed. Justice Harlan, writing for the majority, noted that the practice of impeaching a witness' credibility by bringing out a prior claim of the privilege against self-incrimination "has grave constitutional overtones." 353 U.S. at 423, 77 S.Ct. at 983-984. Reversal, however, was based on the Court's supervisory power. Id. at 424, 77 S.Ct. at 984. Two grounds for reversal were advanced. First, the Court, for the sake of argument, assumed that Halperin's trial testimony and earlier claim of privilege were inconsistent. It then held that the potential for prejudice inherent in this cross-examination so far outweighed its probative value that the trial court in its sound discretion should not have permitted the questions. Id. at 420-421, 77 S.Ct. at 982.

[ 459 Pa. Page 115]

Second, examining the defendant's testimony further, the Court concluded that the cross-examination was also improper because only prior inconsistent statements may be used to impeach. See 3A J. Wigmore, Evidence ยง 1040 (Chadbourn rev. 1970). Both the claim of privilege before the grand jury and the exculpatory answers at trial were "wholly consistent with innocence." 353 U.S. at 421, 77 S.Ct. at 982. Therefore no inconsistency existed and impeachment should not have been permitted.

The concurring opinion of Justice Black, joined by then Chief Justice Warren, and Mr. Justice Douglas and Mr. Justice Brennan, addressed the constitutional issue directly.

"I agree with the Court that use of this claim of constitutional privilege to reflect upon Halperin's credibility was error, but I do not, like the Court, rest my conclusion on the special circumstances of this case. I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution."

Id. at 425-426, 77 S.Ct. at 984-985.

Since Grunewald was decided, several courts have concluded that the reasoning of the concurring opinion, which, of course, was in no way contradicted by the majority's failure to reach the constitutional issue, precludes cross-examination by reference to a prior claim of the privilege against self-incrimination. Fowle v. United States, 410 F.2d 48, 51-56 (9th Cir. 1969); Fagundes v. ...

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