MR. JUSTICE WHITE delivered the opinion of the Court.
These cases present questions as to procedures required at prison disciplinary hearings and as to the reach of our recent decision in Wolff v. McDonnell, 418 U.S. 539 (1974).
A. No. 74-1194
Respondents are inmates of the California penal institution at San Quentin. They filed an action under 42 U. S. C. § 1983 seeking declaratory and injunctive relief and alleging that the procedures used in disciplinary proceedings at San Quentin violated their rights to due process and equal protection of the laws under the Fourteenth Amendment of the Constitution.
B. No. 74-1187
Respondent Palmigiano is an inmate of the Rhode Island Adult Correctional Institution serving a life sentence for murder. He was charged by correctional officers with "inciting a disturbance and disrupt[ion] of [prison] operations, which might have resulted in a riot." App. 197 (No. 74-1187). He was summoned before the prison Disciplinary Board and informed that he might be prosecuted for a violation of state law, that he should consult his attorney (although his attorney was not permitted by the Board to be present during the hearing), that he had a right to remain silent during the hearing but that if he remained silent his silence would be held against him. Respondent availed himself of the counsel-substitute provided for by prison rules and remained
Respondent filed an action under 42 U. S. C. § 1983 for damages and injunctive relief, claiming that the disciplinary hearing violated the Due Process Clause of the Fourteenth Amendment of the Constitution.
We granted certiorari and heard the case with No. 74-1194. 421 U.S. 1010 (1975).
In Wolff v. McDonnell, supra, drawing comparisons to Gagnon v. Scarpelli, 411 U.S. 778 (1973), we said:
Relying on Miranda v. Arizona, 384 U.S. 436 (1966), and Mathis v. United States, 391 U.S. 1 (1968), both Courts of Appeals in these cases held that prison inmates are entitled to representation at prison disciplinary hearings where the charges involve conduct punishable as a crime under state law, not because of the services that counsel might render in connection with the disciplinary proceedings themselves, but because statements inmates might make at the hearings would perhaps be used in later state-court prosecutions for the same conduct.
Neither Miranda, supra, nor Mathis, supra, has any substantial bearing on the question whether counsel must be provided at "[p]rison disciplinary hearings [which] are not part of a criminal prosecution." Wolff v. McDonnell, supra, at 556. The Court has never held, and we decline to do so now, that the requirements of those cases must be met to render pretrial statements admissible in other than criminal cases.
We see no reason to alter our conclusion so recently made in Wolff that inmates do not "have a right to either retained or appointed counsel in disciplinary hearings." 418 U. S., at 570. Plainly, therefore, state authorities were not in error in failing to advise Palmigiano to the contrary, i. e., that he was entitled to counsel at the hearing and that the State would furnish counsel if he did not have one of his own.
Palmigiano was advised that he was not required to testify at his disciplinary hearing and that he could remain silent but that his silence could be used against him. The Court of Appeals for the First Circuit held that the self-incrimination privilege of the Fifth Amendment, made applicable to the States by reason of the Fourteenth Amendment, forbids drawing adverse inferences against an inmate from his failure to testify. The State challenges this determination, and we sustain the challenge.
As the Court has often held, the Fifth Amendment "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Prison disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered "whatever immunity is required to supplant the privilege" and may not be required to "waive such immunity." Id., at 85; Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v. Broderick, 392 U.S. 273 (1968); Sanitation Men v. Sanitation Comm'r, 392 U.S. 280 (1968). In this line of cases from Garrity to Lefkowitz, the States, pursuant to statute, sought to interrogate individuals about their job performance or about their contractual relations with the State; insisted upon waiver of the Fifth Amendment privilege not to respond or to object to later use of the incriminating statements in criminal prosecutions; and, upon refusal to waive, automatically
The Court has also plainly ruled that it is constitutional error under the Fifth Amendment to instruct a jury in a criminal case that it may draw an inference of guilt from a defendant's failure to testify about facts relevant to his case. Griffin v. California, 380 U.S. 609 (1965). This holding paralleled the existing statutory policy of the United States, id., at 612, and the governing statutory or constitutional rule in the overwhelming majority of the States. 8 J. Wigmore, Evidence 425-439 (McNaughton rev. 1961).
The Rhode Island prison rules do not transgress the foregoing principles. No criminal proceedings are or were pending against Palmigiano. The State has not, contrary to Griffin, sought to make evidentiary use of his silence at the disciplinary hearing in any criminal proceeding. Neither has Rhode Island insisted or asked that Palmigiano waive his Fifth Amendment privilege. He was notified that he was privileged to remain silent if he chose. He was also advised that his silence could be used against him, but a prison inmate in Rhode Island electing to remain silent during his disciplinary hearing, as respondent Palmigiano did here, is not in consequence of his silence automatically found guilty of the infraction with which he has been charged. Under Rhode Island law, disciplinary decisions "must be based on substantial evidence manifested in the record of the disciplinary proceeding." Morris v. Travisono, 310 F.Supp. 857, 873 (RI 1970). It is thus undisputed that an inmate's silence in and of itself is insufficient to support an adverse decision by the Disciplinary Board. In
Had the State desired Palmigiano's testimony over his Fifth Amendment objection, we can but assume that it would have extended whatever use immunity is required by the Federal Constitution. Had this occurred and had Palmigiano nevertheless refused to answer, it surely would not have violated the Fifth Amendment to draw whatever inference from his silence that the circumstances warranted. Insofar as the privilege is concerned, the situation is little different where the State advises the inmate of his right to silence but also plainly notifies him that his silence will be weighed in the balance.
Our conclusion is consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment "does not preclude the inference where the privilege is claimed by a party to a civil cause." 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961). In criminal cases, where the stakes are
It is important to note here that the position adopted by the Court of Appeals is rooted in the Fifth Amendment and the policies which it serves. It has little to do with a fair trial and derogates rather than improves the chances for accurate decisions. Thus, aside from the privilege against compelled self-incrimination, the Court has consistently recognized that in proper circumstances silence in the face of accusation is a relevant fact not barred from evidence by the Due Process Clause. Adamson v. California, 332 U.S. 46 (1947); United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-154 (1923); Raffel v. United States, 271 U.S. 494 (1926); Twining v. New Jersey, 211 U.S. 78 (1908). See also United States v. Hale, 422 U.S. 171, 176-177 (1975); Gastelum-Quinones v. Kennedy, 374 U.S. 469, 479 (1963); Grunewald v. United States, 353 U.S. 391, 418-424 (1957). Indeed, as Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, supra, which involved a deportation: "Silence is often evidence of the most persuasive character." 263 U. S., at 153-154. And just last Term in Hale, supra, the Court recognized that "[f]ailure to contest an assertion . . . is considered evidence of acquiescence . . . if it would have been natural under the circumstances to object to the assertion in question." 422 U. S., at 176.
In Wolff v. McDonnell, we held that "the inmate facing disciplinary proceedings should be allowed to call
We were careful to distinguish between this limited right to call witnesses and other due process rights at disciplinary hearings. We noted expressly that, in comparison to the right to call witnesses, "[c]onfrontation and cross-examination present greater hazards to institutional interests." Id., at 567. We said:
We therefore concluded that "[t]he better course at this time, in a period where prison practices are diverse and
Although acknowledging the strictures of Wolff with respect to confrontation and cross-examination, the Court of Appeals for the Ninth Circuit, on rehearing in No. 74-1194, went on to require prison authorities to provide reasons in writing to inmates denied the privilege to cross-examine or confront witnesses against them in disciplinary proceedings; absent explanation, failure to set forth reasons related to the prevention of one or more of the four concerns expressly mentioned in Wolff would be deemed prima facie abuse of discretion.
This conclusion is inconsistent with Wolff. We characterized as "useful," but did not require, written reasons for denying inmates the limited right to call witnesses in their defense. We made no such suggestion with respect to confrontation and cross-examination which, as was there pointed out, stand on a different footing because of their inherent danger and the availability of adequate bases of decision without them. See 418 U. S., at 567-568. Mandating confrontation and cross-examination, except where prison officials can justify their denial on one or more grounds that appeal to judges, effectively pre-empts the area that Wolff left to the sound discretion of prison officials.
Finally, the Court of Appeals for the Ninth Circuit in No. 74-1194 held that minimum due process—such as notice, opportunity for response, and statement of reasons for action by prison officials—was necessary where inmates were deprived of privileges. 510 F. 2d, at 615. We did not reach the issue in Wolff; indeed, we said: "We did not suggest, however, that the procedures required by today's decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges." 418 U. S., at 572 n. 19. Nor do we find it necessary to reach the issue now in light of the record before us. None of the named plaintiffs in No. 74-1194 was subject solely to loss of privileges; all were brought before prison disciplinary hearings for allegations of the type of "serious misconduct," 418 U. S., at 558, that we held in Wolff to trigger procedures therein outlined. See n. 1, supra. Without such a record, we are unable to consider the degree of "liberty" at stake in loss of privileges and thus whether some sort of procedural safeguards are due when only such "lesser penalties" are at stake. To the extent that the Court of Appeals for the Ninth Circuit required any procedures in such circumstances, the Court of Appeals
We said in Wolff v. McDonnell: "As the nature of the prison disciplinary process changes in future years, circumstances may then exist which will require further consideration and reflection of this Court. It is our view, however, that the procedures we have now required in prison disciplinary proceedings represent a reasonable accommodation between the interests of the inmates and the needs of the institution." 418 U. S., at 572. We do not retreat from that view. However, the procedures required by the Courts of Appeals in Nos. 74-1187 and 74-1194 are either inconsistent with the "reasonable accommodation" reached in Wolff, or premature on the bases of the records before us. The judgments in Nos. 74-1187 and 74-1194 accordingly are
MR. JUSTICE STEVENS took no part in the consideration or decision of these cases.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in part and dissenting in part.
I agree that consideration of the procedural safeguards necessary where an inmate is deprived only of privileges is premature on this record, and thus I join Part V of the Court's opinion, which leaves open whether an inmate may be deprived of privileges in the absence of due process safeguards.
Part III of the Court's opinion, however, confronts an issue not present in Wolff
As we have frequently and consistently recognized:
Indeed, only weeks ago we said that "the privilege protects against the use of compelled statements as well as guarantees the right to remain silent absent immunity." Garner v. United States, 424 U.S. 648, 653 (1976) (emphasis supplied). Malloy v. Hogan, 378 U.S. 1 (1964), held that the Fifth Amendment—the "essential mainstay" of our "American system of criminal prosecution," id., at 7—protects "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." Id., at 8. See Spevack v. Klein, 385 U.S. 511, 514 (1967). As THE CHIEF JUSTICE noted last Term: "This Court has always broadly construed [the Fifth Amendment] protection to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action." Maness v. Meyers, 419 U.S. 449, 461
Thus, the Fifth Amendment not only excludes from use in criminal proceedings any evidence obtained from the defendant in violation of the privilege, but also is operative before criminal proceedings are instituted: it bars the government from using compulsion to obtain incriminating information from any person. Moreover, the protected information "does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution . . . . Hoffman v. United States, 341 U.S. 479, 486 (1951)." Maness v. Meyers, supra, at 461. And it is not necessary that a person be guilty of criminal misconduct to invoke the privilege; an innocent person, perhaps fearing that revelation of information would tend to connect him with a crime he did not commit, also has its protection. " `The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.' " Grunewald v. United States, 353 U.S. 391, 421 (1957), quoting Slochower v. Board of Education, 350 U.S. 551, 557-558 (1956). See E. Griswold, The Fifth Amendment Today 10-22 (1955); Ratner, Consequences of Exercising the Privilege Against Self-Incrimination, 24 U. Chi. L. Rev. 472 (1957).
Accordingly, the fact that no criminal proceedings were pending against Palmigiano, ante, at 317, does not answer the crucial question posed by this case. The evidentiary
It was this aspect of the privilege that we relied on in a line of cases beginning with Garrity v. New Jersey, 385 U.S. 493 (1967), and leading up to Lefkowitz v. Turley, supra. The Court says today that "this case is very different," ante, at 318, but in my view the Garrity-Lefkowitz cases are compelling authority that drawing an adverse inference from an inmate's exercise of the privilege to convict him of a disciplinary offense violates the Fifth Amendment.
In Garrity policemen were summoned to testify in the course of an investigation of police corruption. They were told that they could claim the privilege, but would be discharged if they did. Garrity held that imposition of the choice between self-incrimination and job forfeiture denied the constitutionally required "free choice to admit, to deny, or to refuse to answer." Lisenba v. California, 314 U.S. 219, 241 (1947). Subsequent criminal convictions were therefore set aside on the ground that the unconstitutionally compelled testimony should not have been admitted in evidence at trial.
In Spevack v. Klein, supra, decided the same day as Garrity, an attorney refused to honor a subpoena calling for production of certain financial records; the sole basis for the refusal was the privilege against self-incrimination. He was disbarred for exercising the privilege, and
Gardner v. Broderick, 392 U.S. 273 (1968), involved a policeman called to testify before a grand jury investigating police corruption. He was warned of his constitutional right to refuse to give any incriminating information, but was also asked to waive immunity, and told that if he refused to do so, a state statute required that he be discharged. He refused to waive immunity and was discharged. Gardner invalidated the state statute on the ground that the Fifth Amendment does not permit the government to use its power to discharge employees to coerce disclosure of incriminating evidence. Id., at 279. Sanitation Men v. Sanitation Comm'r, 392 U.S. 280
Lefkowitz v. Turley, supra, the most recent decision involving noncriminal penalties for exercising the privilege, concerned two architects summoned to testify before a grand jury investigating charges of corruption relating to state contracts. They refused to waive the privilege, and a state statute provided that such a refusal would result in cancellation of existing state contracts and ineligibility for future contracts for five years. The architects brought suit, claiming that the statute violated the privilege against compulsory self-incrimination. The Court held that in the absence of a grant of immunity the government may not compel an individual to give incriminating answers. 414 U. S., at 79.
It follows that settled jurisprudence until today has been that it is constitutionally impermissible for the government to impose noncriminal penalties as a means of compelling individuals to forgo the privilege. The Court therefore begs the question by "declin[ing] to extend the
The Court's attempted distinction of those cases plainly will not wash. To be sure, refusal to waive the privilege resulted in automatic imposition of some sanction in all of those cases. The Court reasons that because disciplinary decisions must be based on substantial record evidence, Morris v. Travisono, 310 F.Supp. 857, 873 (RI 1970),
But the premise of the Garrity-Lefkowitz line was not that compulsion resulted from the automatic nature of the sanction, but that a sanction was imposed that made costly the exercise of the privilege. Plainly the penalty imposed on Palmigiano—30 days in punitive segregation and a downgraded classification—made costly the exercise of the privilege no less than loss of government
It is inconsequential that the State is free to determine the probative weight to be attached to silence. Garrity-Lefkowitz did not consider probative value, and other precedents deny the State power to attach any probative weight whatever to an individual's exercise of the privilege, as I develop more fully in Part IV.
The Court also draws support from the "prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse
Such a distinction is mandated by one of the fundamental purposes of the Fifth Amendment: to preserve our adversary system of criminal justice by preventing the government from circumventing that system by abusing its powers. Garner v. United States, supra, at 655-656. Only a few weeks ago, we said: "That system is undermined when a government deliberately seeks to avoid the burdens of independent investigation by compelling self-incriminating disclosures." Ibid.
In a civil suit involving only private parties, no party brings to the battle the awesome powers of the government, and therefore to permit an adverse inference to be drawn from exercise of the privilege does not implicate the policy considerations underlying the privilege. But where the government "deliberately seeks" the answers to incriminatory questions, allowing it to benefit from the exercise of the privilege aids, indeed encourages, governmental circumvention of our adversary system. In contrast, an affirmance of the judgment in Palmigiano's case would further obedience of the government to the commands of the Fifth Amendment. Cf. United States v. Karathanos, 531 F.2d 26, 35 (CA2 1976) (Oakes, J., concurring); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349 (1974).
Nothing in this record suggests that the State does not use the disciplinary procedure as a means to gather evidence for criminal prosecutions. On the contrary, Palmigiano was told that he might be prosecuted, which indicates that criminal proceedings are brought in some instances. And if the State does not intend to initiate criminal proceedings, the Fifth Amendment problem can be readily avoided simply by granting immunity for any testimony given at disciplinary hearings.
I would therefore affirm the judgment of the Court of Appeals in No. 74-1187 insofar as that court held that an inmate's silence may not be used against him in a prison disciplinary proceeding. This would make unnecessary addressing the question whether exercise of the privilege may be treated as probative evidence of guilt. Since the Court, however, indicates that invocation of the privilege is probative in these circumstances, ante, at 319, I express my disagreement. For we have repeatedly emphasized that such an inference has no foundation. Indeed, the very cases relied upon by the Court expose its error and support the conclusion that Palmigiano's silence could not be treated as probative.
United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923), quoted ante, at 319, involved a deportation proceeding in which the deportee failed to deny that he was an alien. But he also failed to claim or attempt to prove that he was a citizen. Alienage was not an element of any crime, and his silence was held probative of his
The Court also quotes part of a sentence from United States v. Hale, 422 U.S. 171 (1975). We said in Hale that "[i]n most circumstances silence is so ambiguous that it is of little probative force." Id., at 176. We also noted that its probative force increases where a person "would be more likely than not to dispute an untrue accusation." Ibid. We emphasized that "[f]ailure to contest an assertion, however, is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question." Ibid. (emphasis supplied). That was not the case since Hale's silence was in response to notice that he had a right to remain silent, and that any statements he made would be used against him in court. These excerpts from Hale require the conclusion that Palmigiano's silence also had no probative force. Palmigiano was also advised that he had a right to remain silent, that he might be prosecuted, and that anything he said could be used against him in court.
Finally, Grunewald v. United States, 353 U.S. 391 (1957), is particularly persuasive authority that Palmigiano's silence is not probative. We there considered whether one Halperin's exercise of the privilege was probative of guilt, and we concluded that his silence, in the circumstances, was "wholly consistent with innocence." Id., at 421. "Halperin repeatedly insisted . . . that he was innocent and that he pleaded his Fifth Amendment privilege solely on the advice of counsel." Id., at 422. Similarly, Palmigiano here maintained that he was innocent and that he claimed the privilege on
To accord silence probative force in these cases overlooks the hornbook teaching "that one of the basic functions of the privilege is to protect innocent men." Grunewald v. United States, supra, at 421 (emphasis in original). If this Court's insensitivity to the Fifth
"Silence, omissions, or negative statements, as inconsistent: (1) Silence, etc., as constituting the impeaching statement. A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. This is conceded as a general principle of evidence (§ 1071 infra). There may be explanations, indicating that the person had in truth no belief of that tenor; but the conduct is `prima facie' an inconsistency.
"There are several common classes of cases:
"(1) Omissions in legal proceedings to assert what would naturally have been asserted under the circumstances.
"(2) Omissions to assert anything, or to speak with such detail or positiveness, when formerly narrating, on the stand or elsewhere, the matter now dealt with.
"(3) Failure to take the stand at all, when it would have been natural to do so.
"In all of these much depends on the individual circumstances, and in all of them the underlying test is, would it have been natural for the person to make the assertion in question?" (Emphasis in original.) (Footnotes omitted.)
Although Rhode Island prison officials are not authorized by statute to grant immunity, my Brother WHITE has suggested that a witness who fails to persuade a judge that a prospective answer is incriminatory "is nevertheless protected by a constitutionally imposed use immunity if he answers in response to the [judge's] order and under threat of contempt." Maness v. Meyers, 419 U. S., at 474 (concurring in result). See Fowler v. Vincent, 366 F.Supp. 1224, 1228 (SDNY 1973); Sands v. Wainwright, 357 F.Supp. 1062, 1093 (MD Fla. 1973). Although an inmate would not be testifying in response to a court order, his answers in response to questions of prison officials are nevertheless compelled within the meaning of the Fifth Amendment. Thus, there would be immunity for any statements given. The inmate must, however, be informed of the existence of the immunity. As my Brother WHITE said, "a witness may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him." Maness v. Meyers, supra, at 473 (emphasis in original).