State v. Johnson

¶1dissenting.

¶2Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is clearly inap*1260plicable here. As the majority opinion points out, the deterrent purpose of the Mirandadecision is not served by suppressing the statement under the circumstances of this case, and I agree the warnings mandated by Mirandaand La.Const. art. 1, § 13 (1974) were not required in this case.

¶3Nevertheless, this court historically has protected the privilege against self-incrimination of witnesses compelled to appear and testify before grand juries. See State v. Harrell, 228 La. 434, 82 So.2d 701 (La.1955); State v. Wallace, 321 So.2d 349 (La.1975). Even before the Mirandadecision, this court recognized that a targeted person who is required to appear before a grand jury (performing its inquisitional role in the prosecution) should formally be advised of the privilege against self-incrimination. Absent a waiver of the privilege or a grant of immunity, this court treated the questioning of a potential defendant before a grand jury as an infringement of his privilege against self-incrimination. See State v. Nattin, 316 So.2d 115 (La.1975); State v. Smalling, 240 La. 915, 125 So.2d 409 (La. 1960); State v. Jemison, 240 La. 787, 125 So.2d 363 (La.1960).

¶4Although the present case involved a subpoena to appear before the district attorney, rather than the grand jury, the subpoena purported (as does a grand jury subpoena) to compel both the appearance and the testimony of the witness.1 Thus, I cannot agree with the court’s conclusion that this subpoena did not compel the defendant to testify.2 Because the official command (subpoena) ordered appearance and testimony, this court’s earlier cases, requiring an affirmative waiver of the privilege in comparable grand jury situations, are controlling and should either be followed or overruled.