garner argued november decided march petitioner income tax returns revealed gambler introduced evidence fifth amendment objection proof federal gambling conspiracy offense charged held petitioner privilege compulsory violated since petitioner made incriminating disclosures tax returns instead claiming privilege right disclosures compelled incriminations factor depriving petitioner free choice refuse answer general rule applies witness claim privilege disclosures considered compelled within meaning fifth amendment sullivan miranda arizona mackey garrity new jersey distinguished pp affirmed powell delivered opinion burger stewart white blackmun rehnquist joined marshall filed opinion concurring judgment brennan joined post stevens took part consideration decision case burton marks argued cause petitioner brief jonathan golden deputy solicitor general jones argued cause brief solicitor general bork assistant attorney general thornburgh deputy solicitor general frey jerome feit frederick read iii justice powell delivered opinion case involves nontax criminal prosecution government introduced petitioner income tax returns prove offense question whether introduction evidence petitioner fifth amendment objection violated privilege compulsory petitioner made incriminating disclosures returns instead claiming privilege petitioner roy garner indicated conspiracy involving use interstate transportation communication facilities fix sporting contests transmit bets information assisting placing bets distribute resultant illegal proceeds government case conspirators bet horse races either fixed possession information unavailable general public garner role scheme furnishing inside information case included testimony conspirators telephone toll records showed calls garner conspirators various bets placed government also introduced garner fifth amendment objection form income tax returns garner filed return garner reported occupation professional gambler return reported substantial income gambling wagering prosecution relied garner familiarity business wagering gambling reflected returns help rebut claim relationships conspirators innocent ones jury returned guilty verdict garner appealed appeals ninth circuit contending privilege compulsory entitled exclude tax returns despite failure claim privilege returns instead making disclosures sitting en banc appeals held garner failure assert privilege returns defeated fifth amendment claim agree ii sullivan held privilege compulsory defense prosecution failing file return indicated privilege claimed specific disclosures sought return saying form return provided called answers defendant privileged making raised objection return account refuse make return given sullivan fairly said taxpayers volunteers file tax returns government compels filing return much compels example appearance witness grand jury availability service prosecutions summons procedure also induces taxpayers disclose unprivileged information returns question however whether government said compelled garner incriminate regard specific disclosures made return claimed fifth amendment privilege instead iii start fundamental proposition witness protected privilege may refuse answer unless protected least use compelled answers evidence derived therefrom subsequent criminal case defendant kastigar absent protection nevertheless compelled answer answers inadmissible later criminal prosecution bram boyd lefkowitz turley privilege protects use compelled statements well guarantees right remain silent absent immunity inquiry fifth amendment case ended incriminating statement made lieu claim privilege however failure claim privilege irrelevant held individual compulsion make disclosures witness revealed information instead claiming privilege lost benefit privilege kordel although kordel appears square holding effect frequently recognized principle dictum maness meyers rogers smith monia vajtauer commissioner immigration decisions stand proposition ordinary case witness compulsion testify makes disclosures instead claiming privilege government compelled incriminate amendment speaks compulsion preclude witness testifying voluntarily matters may incriminate therefore desires protection privilege must claim considered compelled within meaning amendment monia supra omitted addition rule witness must claim privilege consistent fundamental purpose fifth amendment preservation adversary system criminal justice see tehan ex rel shott system undermined government deliberately seeks avoid burdens independent investigation compelling disclosures areas government said compelling information however circumvention constitutionally mandated policy adversary criminal proceedings cf counselman hitchcock california byers harlan concurring judgment iv information revealed preparation filing income tax return purposes fifth amendment analysis testimony witness term used herein since garner disclosed information returns instead objecting fifth amendment claim defeated application general requirement witnesses must claim privilege garner however resists application requirement arguing incriminating disclosures made lieu objection compelled context relies specifically three situations incriminatory disclosures considered compelled despite failure claim privilege narrowly defined situations factor present made inappropriate general rule privilege must claimed situation relevant factor held deny individual free choice admit deny refuse answer lisenba california reasons stated conclude factor deprived garner free choice garner relies first cases dealing coerced confessions miranda arizona required exclusion incriminating statements unless knowing intelligent waiver privilege regardless whether privilege claimed garner notes shown failure claim privilege waiver evident cases little disclosures tax return cases present entirely different situation custodial interrogation see presumed without proper safeguards circumstances custodial interrogation deny individual ability freely choose remain silent see ibid time inquiring government acutely aware potentially incriminatory nature disclosures sought thus pressures inherent custodial interrogation compulsions incriminate merely compulsions make unprivileged disclosures danger custodial interrogation posed adversary system favored privilege miranda impelled adopt extraordinary safeguard excluding statements made without knowing intelligent waiver privilege see michigan mosley schneckloth bustamonte nothing case suggests need similar presumption taxpayer makes disclosures return rather claims privilege fact taxpayer complete return leisure legal assistance even less subject psychological pressures issue miranda witness called testify judicial proceedings cf kordel miranda supra garner relies next mackey relevance understood light marchetti grosso latter cases considered whether fifth amendment defense prosecutions failure file returns required gamblers connection federal occupational excise taxes gambling found disclosures made connection payment taxes tended incriminate pervasive criminal regulation gambling activities marchetti supra grosso supra since submitting claim privilege lieu returns also incriminate held privilege exercised simply failing file mackey disclosures required connection gambling excise tax made marchetti grosso decided mackey returns introduced criminal prosecution income tax evasion although majority considered disclosures returns compelled incriminations plurality opinion brennan concurring judgment douglas dissenting mackey immunized use marchetti grosso held nonretroactive plurality opinion harlan concurring judgment garner assumes mackey made disclosures marchetti grosso used concludes since mackey privileged file returns mackey stands proposition objection trial always suffices preserve privilege even disclosures made previously assuming garner otherwise reads mackey correctly think case applied context basis holdings marchetti grosso occupational excise taxes gambling required disclosures gamblers great majority likely incriminate responding marchetti supra grosso supra therefore cases compulsion disclose likely compel garner differently situated although disclosed gambler federal income tax returns directed inherently suspect criminal activities marchetti supra noted albertson sacb questions income tax return neutral face directed public large great majority persons file income tax returns incriminate disclosing occupation requirement returns completed filed simply involve compulsion incriminate considered mackey garner final argument relies garrity new jersey policemen summoned investigation police corruption informed claim privilege discharged disclosures made introduced subsequent criminal prosecutions held penalty discharge reliance privilege foreclosed free choice remain silent therefore effect compelling incriminating testimony given policemen garner notes taxpayer claims privilege return faces possibility criminal prosecution failure make return argues possibility prosecution like threat discharge garrity compels taxpayer make incriminating disclosures rather claim privilege contention entirely without force find unpersuasive policemen garrity threatened punishment concededly valid exercise privilege one garner situation disadvantage conviction based valid exercise privilege implicit dictum sullivan privilege may claimed return furthermore held individual summoned service provide documents testimony rely privilege defend prosecution failure supply information see murdock murdock ii murdock murdock disapproved grounds murphy waterfront fifth amendment guarantees taxpayer insulation liability imposed basis valid timely claim privilege protection broadened statutory standard willfulness since valid claim privilege basis conviction garner prevail possibility claim made return tested criminal prosecution suffices deny freedom claim privilege argues noting threat prosecution taxpayer contemplating claim privilege return faces difficult choice witness contemplating claim privilege judicial proceeding latter claims protection fifth amendment receives judicial ruling time validity claim opportunity reconsider held contempt refusal answer cf maness meyers prosecution however may brought without preliminary judicial ruling claim privilege allow taxpayer reconsider essence garner contends fifth amendment guarantee requires procedure testing validity asserted privilege may procedure serve best interests government well taxpayer cf emspak harlan dissenting certainly say constitution requires previously considered fifth amendment claims context criminal prosecution defendant benefit preliminary judicial ruling claim privilege never intimated procedure permissible indeed given measure endorsement murdock supra individual prosecuted predecessors refusing make disclosures summoned bureau internal revenue contended apparently statutory grounds prosecution without prior judicial enforcement suit allow presentation claim privilege preliminary ruling said undoubtedly right witness refuse answer lest incriminate may tested proceedings compel answer support contention must determination question prosecution willful failure denounced satisfied murdock constitutional standard issue principally matter timing procedure long valid timely claim privilege available defense taxpayer prosecuted failure make return taxpayer denied free choice remain silent merely absence preliminary judicial ruling claim therefore agree garner deterred claiming privilege sense true policemen garrity summary conclude since garner made disclosures instead claiming privilege tax returns disclosures compelled incriminations therefore foreclosed invoking privilege information later introduced evidence criminal prosecution judgment affirmed footnotes panel appeals originally heard case accepted garner contention reversed one judge dissenting en banc affirmed conviction vote sullivan justice holmes writing said extreme extravagant application fifth amendment say authorized man refuse state amount income made crime defendant desired test point tested return passed upon title reads full person required title pay estimated tax tax required title regulations made authority thereof make return return required authority section keep records supply information willfully fails pay estimated tax tax make return keep records supply information time times required law regulations shall addition penalties provided law guilty misdemeanor upon conviction thereof shall fined imprisoned year together costs prosecution title reads part purpose ascertaining correctness return making return none made determining liability person internal revenue tax collecting liability secretary delegate authorized summon person liable tax required perform act officer employee person person possession custody care books account containing entries relating business person liable tax required perform act person secretary delegate may deem proper appear secretary delegate time place named summons produce books papers records data give testimony oath may relevant material inquiry title appear authorize service alternative enforcement suit order summoned taxpayer make disclosures exchange immunity informed however service practice utilize brief term witness used herein identify one time disclosures sought defendant criminal proceeding frequent situations witness disclosures compelled subject fifth amendment rights include testimony grand jury civil criminal case proceeding legislative administrative body possessing subpoena power also held analogously witness loses privilege failing claim promptly even though information sought remains undisclosed privilege claimed murdock disapproved grounds murphy waterfront see rogers conclusion always couched language used cases indicated nonclaiming witness waived privilege see vajtauer commissioner immigration others indicated witness testifies voluntarily see rogers supra neither usage seems analytically sound cases apply waiver standard term used johnson zerbst recently made clear individual may lose benefit privilege without making knowing intelligent waiver see schneckloth bustamonte moreover seems desirable reserve term waiver cases process one affirmatively renounces protection privilege see smith concept voluntariness related concept compulsion may promote clarity use latter term cases disclosures required face claim privilege reserving voluntariness concerns discussed part iv infra consider whether factor prevents taxpayer desiring claim privilege arguments fact advanced dissent en banc decision garner adopted brief issue brief petitioner garner brief principally advances two claims error facts underlying claims presented petition certiorari see rule alone merited denial petition containing claim rule contentions deemed sufficient merit warrant discussion circumstances consider inappropriate reach noted privilege exception general principle government right everyone testimony corollary principle claim privilege ordinarily must presented tribunal evaluation time disclosures initially sought see albertson sacb vajtauer commissioner immigration mason early evaluation claims allows government compel evidence claim invalid immunity granted therefore assures government obtains information entitled gambling tax cases however making claim privilege disclosures requested returns due identified claimant gambler therefore forgave usual requirement claim privilege presented evaluation favor claim silence see marchetti nonetheless recognized one claimed privilege refusing file required subsequently justify claim privilege see particular gambler incriminated filing tax returns privilege justify failure file justice brennan joined justice marshall concurred judgment ground compelled disclosure amount mackey gambling income used prosecution income tax evasion see follow necessarily taxpayer immunized use disclosures made gambling tax returns fifth amendment justified failure file marchetti grosso held retroactive immunization might appropriate mackey case time mackey filed fact privilege file marchetti grosso yet decided kahriger lewis previously held privilege defense prosecution failure file occupational tax returns mackey therefore compelled file returns thereby necessarily identifying gambler thus risking accordingly two related reasons view disclosures made mackey compelled incriminations first inherently incriminating nature information demanded government see supra second gambler inability claim privilege refusing file time mackey disclosures required cf mackey brennan concurring judgment leary grosso case gambling tax returns filed marchetti grosso second factor present marchetti grosso course removed threat criminal conviction one validly claims privilege failing file gambling tax returns pause consider whether may circumstances deprive gambler free choice claim privilege failing file returns therefore allow exclude completed gambling tax return claiming privilege trial cf supra garner contends whatever case may regard taxpayers general gambler might incriminated revealing occupation claim privilege return effectively contention stems fact certain specialized tax calculations required gamblers see code recent cases harv rev garner argues process claiming privilege respect calculations reveal gambler occupation need address contention since garner found unnecessary make special calculations garner contends california byers cast doubt sullivan dictum held byers privilege compulsory violated statute requiring motorists involved automobile accidents stop identify garner argues byers suggests governments always compel answers neutral regulatory inquiries scheme protection fifth amendment afforded cases solely use immunity agree byers undercut sullivan dictum although majority rationale byers holding addressed basic requirement one name address disclosed opinions upholding requirement suggested privilege might claimed appropriately questions plurality opinion harlan concurring judgment byers thus analogous sullivan holding requiring certain basic disclosures fundamental neutral reporting scheme violate privilege murdock cases involved predecessor statutes identical material respects see internal revenue act stat internal revenue act stat proscribes willful failures make returns taxpayer peril every erroneous claim privilege government recognizes defendant properly convicted erroneous claim privilege asserted good faith concession simply reflects holding murdock ii murdock claim privilege considered unjustified holding murdock disapproved murphy waterfront recognized good faith assertion entitle murdock acquittal government think correctly assumed carried burden showing mere voluntary failure supply information intent good faith exercise privilege granted witness constitution government advised us oral argument claim privilege stimulate rulings service doubtful therefore claimant find prosecuted prior indication service considered claim invalid claimant however judicial assessment claim seen supra language opinion read allowing taxpayer desiring protection privilege make disclosures concurrently claim privilege thereby immunize use disclosures taxpayer desires protection privilege must claim instead making disclosures rule deprive government choice compelling evidence claimant exchange immunity avoiding burdens immunization obtaining evidence elsewhere see mackey brennan concurring judgment justice marshall justice brennan joins concurring judgment agree petitioner made incriminating disclosures income tax returns rather claimed privilege thereafter assert privilege bar introduction returns criminal prosecution disagree however rationale far broader either necessary appropriate dispose case case ultimately turns simple question whether possibility prosecuted failure make return compels taxpayer make incriminating disclosure rather claim privilege return discussing question notes willful failure make return punishable defendant properly convicted erroneous claim privilege asserted good faith ante since erroneous assertion privilege expose taxpayer criminal liability hold threat prosecution compel incriminating disclosures violation fifth amendment protection accorded assertion privilege effectively preserves taxpayer freedom choose making incriminating disclosures claiming fifth amendment privilege affirm judgment appeals reason content rest decision ground decides even erroneous assertion privilege form basis criminal liability threat prosecution amount compulsion constitutionally sufficient according valid claim privilege defense prosecution ante holding answers question admission presented facts case contrary implication contained opinion question one first impression citing murdock murdock observes taxpayer claims privilege return convicted violation without given preliminary ruling validity claim second chance complete return claim rejected leaps conclusion fifth amendment satisfied long valid claim privilege defense prosecution accept proposition preliminary ruling prerequisite prosecution cf quinn follow murdock hold absence preliminary ruling import considering whether defense assertion privilege constitutionally required one thing deny defense witness given prompt ruling validity claim privilege opportunity reconsider refusal testify subjecting possible punishment contempt see maness meyers quite another deny defense someone like petitioner may denied ruling validity claim privilege criminal prosecution late reconsider contrary undisputed fact taxpayer assurance either preliminary ruling defense assertion privilege claim privilege risk erroneous assessment law subject criminal liability event consider taxpayer denied free choice claim privilege view incriminating disclosures tax return compelled within meaning fifth amendment erroneous claim privilege entitles taxpayer acquittal conclude petitioner disclosures admissible indeed notes ante held murdock entitled acquittal assertion privilege good faith murdock murdock ii