One who, in obedience to a subpoena, appears before a grand jury
inquiring into an alleged violation of the Sherman Act, and gives
testimony under oath substantially touching the alleged offense,
obtains immunity from prosecution for that offense, pursuant to the
terms of the Sherman Act, as amended, although he does not claim
his privilege against self-incrimination. P.
317 U. S.
430.
Affirmed.
Appeal under the Criminal Appeals Act from a judgment overruling
demurrers to special pleas in bar filed by the appellees to an
indictment for violation of the Sherman Act.
Page 317 U. S. 425
MR. JUSTICE ROBERTS delivered the opinion of the Court.
This is a direct appeal from the District Court for Northern
Illinois prosecuted pursuant to the Criminal Appeals Act. [
Footnote 1] It presents a question upon
which the lower federal courts have sharply divided. [
Footnote 2] The question is whether one who,
in obedience to a subpoena, appears before a grand jury inquiring
into an alleged violation of the Sherman Act, and gives testimony
under oath substantially touching the alleged offense, obtains
immunity from prosecution for that offense, pursuant to the terms
of the Sherman Act, although he does not claim his privilege
against self-incrimination.
The Sherman Act [
Footnote 3]
provides in part:
". . . no person shall be prosecuted or be subjected to any
penalty or forfeiture for or on account of any transaction, matter,
or thing concerning which he may testify or produce evidence,
documentary or otherwise, in any proceeding, suit, or prosecution
under said Acts [the Interstate Commerce Act, the Sherman
Anti-Trust Act, and other acts]:
Provided further, That no
person so testifying
Page 317 U. S. 426
shall be exempt from prosecution or punishment for perjury
committed in so testifying."
That statute was supplemented by the Act of June 30, 1906,
[
Footnote 4] which, so far as
material, is
". . . under the immunity provisions [of the above Act and
others], immunity shall extend only to a natural person who, in
obedience to a subpoena, gives testimony under oath or produces
evidence, documentary or otherwise, under oath."
An indictment was returned charging corporations and
individuals, including the two appellees, with conspiracy to fix
prices in violation of the Sherman Act. The appellees filed special
pleas in bar, each alleging that, in obedience to a subpoena duly
served, he appeared as a witness for the United States before the
grand jury inquiring respecting the matters charged in the
indictment, and gave testimony substantially connected with the
transactions covered by the indictment. No question is made but
that the testimony so given did substantially relate to the
transactions which were the subject of the indictment.
The United States demurred to the pleas as insufficient, since
neither alleged that the witness asserted any claim of privilege
against self-incrimination, and therefore neither the Fifth
Amendment of the Constitution nor the immunity statute could avail
him.
The District Court overruled the demurrers on the ground that
the plain mandate of the statute precluded prosecution of the
appellees whether they had claimed the privilege or not. We hold
that the decision was right.
Beyond dispute, the appellees were entitled to immunity from
prosecution if the statute is to be given effect as it is written.
We are asked, however, to read into it a qualification to the
effect that immunity is not obtained unless the privilege against
self-incrimination is claimed. Inasmuch
Page 317 U. S. 427
as the statute is addressed to this privilege, and the privilege
is accorded by the Fifth Amendment, it is said that, if immunity is
offered as a substitute for the privilege, the immunity, like the
privilege, ought to be claimed; that thus the statute and the Fifth
Amendment, which are
pari materia, will be given a
consistent construction.
In the second place, it is urged that qualification of the
forthright terms of the statute is necessary in order to avoid an
unreasonable, unfair, and unintended result. The argument runs
that, if the statute is construed automatically to grant immunity
without a claim of privilege, the prosecutor is at a disadvantage,
since he does not know whether, or to what extent, a witness may
have participated in a crime, and so runs the risk of
unintentionally affording immunity. On the other hand, so it is
said, the witness has full knowledge as to the nature of his own
conduct, and as to his possible incrimination by testimony, and it
is not unfair to require him to claim his privilege, and so put the
prosecutor on notice that, if he insists upon the testimony, the
witness will obtain immunity.
The well understood course of legislation before and after the
adoption of the statute involved, and the legislative history,
compel rejection of the contentions.
The Fifth Amendment declares that "[n]o person . . . shall be
compelled in any criminal Case to be a witness against himself." An
investigation by a grand jury is a criminal case. [
Footnote 5] The amendment speaks of
compulsion. It does not preclude a witness from testifying
voluntarily in matters which may incriminate him. If, therefore, he
desires the protection of the privilege, he must claim it or he
will not be considered to have been "compelled" within the meaning
of the Amendment. [
Footnote
6]
More than seventy years ago, Congress was advised that, in suits
prosecuted by the United States, where
Page 317 U. S. 428
evidence had been sought from certain persons, to be used by the
Government, they had interposed a claim of privilege which had been
sustained by the courts. [
Footnote
7] In order to forestall the obstruction and delay incident to
judicial determination of the validity of the witness' claim, and
in order to obtain necessary evidence, even though the claim were
well founded, Congress adopted the Act of February 25, 1868,
[
Footnote 8] which became R.S.
§ 860. This Act applied to all judicial proceedings, and provided,
in effect, that no evidence obtained from a witness could be used
against him in a criminal proceeding.
This court, in
Counselman v. Hitchcock, 142 U.
S. 547, held the Act unconstitutional because, while it
prevented the use of the evidence against the witness, it did not
preclude his prosecution as a result of information gained from his
testimony. The court indicated clearly that nothing short of
absolute immunity would justify compelling the witness to testify
if he claimed his privilege.
The original Interstate Commerce Act [
Footnote 9] contained an immunity provision in the form
held invalid in the
Counselman case. To meet the decision
in that case, Congress passed the Act of February 11, 1893,
[
Footnote 10] which applied
only to proceedings under the Interstate Commerce Ac. This statute,
however, became the model for immunity provisions which were
enacted at various times up to 1933, including the Act of February
25, 1903,
supra, with which we are here concerned. This
court sustained the constitutionality of these Acts. [
Footnote 11]
In 1906, the District Court for the Northern District of
Illinois held, in
United States v. Armour & Co., 142
F. 808, that a voluntary appearance, and the furnishing of
Page 317 U. S. 429
testimony and information without subpoena, operated to confer
immunity from prosecution under the Sherman Act. The court held
that the immunity conferred was broader than the privilege given by
the Fifth Amendment. The decision attracted public interest, since,
if it stood, one could immunize himself from prosecution by
volunteering information to investigatory bodies. Congress promptly
adopted the Act of June 30, 1906,
supra, providing that
the immunity should only extend to a natural person who, in
obedience to a subpoena, testified or produced evidence under oath.
The Congressional Record shows that the sole purpose of the bill
was exactly what its language states. [
Footnote 12] Senator Knox, who sponsored the bill,
stated:
"Mr. President, the purpose of this bill is clear, and its range
is not very broad. It is not intended to cover all disputed
provisions as to the rights of witnesses under any circumstances
except those enumerated in the bill itself."
It is evident that Congress, by the earlier legislation, had
opened the door to a practice whereby the Government might be
trapped into conferring unintended immunity by witnesses
volunteering to testify. The amendment was thought, as the
Congressional Record demonstrates, to be sufficient to protect the
Government's interests by preventing immunity unless the
prosecuting officer, or other Government official concerned, should
compel the witness' attendance by subpoena and have him sworn.
Not until 1933 did Congress evidence an intent that, if the
witness desired immunity, he must, in addition, assert his
constitutional privilege. In a series of acts adopted between 1934
and 1940, an additional provision was inserted adding this
requirement. [
Footnote 13]
These acts indicate
Page 317 U. S. 430
how simple it would have been to add a similar provision
applicable to the Interstate Commerce Act, the Sherman Act, and
others which have been allowed to stand as originally enacted save
for the amending Act of 1906. [
Footnote 14]
The legislation involved in the instant case is plain in its
terms, and, on its face, means to the layman that, if he is
subpoenaed, and sworn, and testifies, he is to have immunity.
Instead of being a trap for the Government, as was the original
Act, the statutes in question, if interpreted as the Government now
desires, may well be a trap for the witness. Congress evidently
intended to afford Government officials the choice of subpoenaing a
witness and putting him under oath, with the knowledge that he
would have complete immunity from prosecution respecting any matter
substantially connected with the transactions in respect of which
he testified, or retaining the right to prosecute by foregoing the
opportunity to examine him. That Congress did not intend, or by the
statutes in issue provide, that, in addition, the witness must
claim his privilege seems clear. It is not for us to add to the
legislation what Congress pretermitted.
We have referred to the diversity of views amongst the lower
courts. The Government insists that this court has settled the
question in favor of its view. Its reliance is upon
Heike v.
United States, 227 U. S. 131.
That case, however, decided only that the immunity conferred by the
legislation in question was intended to protect the witness to the
same extent that the Fifth Amendment protects him. The question was
whether the immunity extended to prosecution for crimes with which
the matters testified to were but remotely connected. This court
held that, as the Amendment did not justify a claim of
Page 317 U. S. 431
privilege against such remote contingencies, the immunity should
be likewise construed not to reach them. The question of the
necessity of a witness before an investigatory body claiming his
privilege in order to earn his immunity was not decided.
The judgment is
Affirmed.
[
Footnote 1]
Act of March 2, 1907, 34 Stat. 1246, as amended by the Act of
May 9, 1942, 56 Stat. 271, 18 U.S.C. 682.
[
Footnote 2]
Compare United States v. Armour & Co., 142 F. 808;
United States v. Skinner, 218 F. 870;
United States v.
Elton, 222 F. 428;
United States v. Lee, 290 F. 517;
Johnson v. United States, 5 F.2d 471;
United States v.
Lay Fish Co., 13 F.2d
136;
United States v. Greater New York Live Poultry C. of
C., 33 F.2d 1005,
with United States v. Pardue, 294
F. 543;
United States v. Ward, 295 F. 576;
United
States v. Moore, 15 F.2d 593;
United States v.
Goldman, 28 F.2d
424.
[
Footnote 3]
Act of February 25, 1903, 32 Stat. 854, 904, 15 U.S.C. § 32.
[
Footnote 4]
34 Stat. 798, 15 U.S.C. 33.
[
Footnote 5]
Counselman v. Hitchcock, 142 U.
S. 547,
142 U. S.
562.
[
Footnote 6]
United States ex rel. Vajtauer v. Commissioner,
273 U. S. 103,
273 U. S. 113.
[
Footnote 7]
Cong.Globe, 40th Cong., 2d Sess., pp. 950-51, 1334.
[
Footnote 8]
15 Stat. 37.
[
Footnote 9]
24 Stat. 383.
[
Footnote 10]
27 Stat. 443, 49 U.S.C. § 46.
[
Footnote 11]
Brown v. Walker, 161 U. S. 591.
[
Footnote 12]
40 Cong.Rec. 5500, 7657-58, 8734-39-40.
[
Footnote 13]
See e.g., Securities Exchange Act, 49 Stat. 900, 15
U.S.C. § 78u(d); Investment Advisers Act, 54 Stat. 853, 15 U.S.C. §
80b-9(d).
[
Footnote 14]
It may be that, due to the thoroughness of preliminary
investigation in the classes of cases in question, Congress has
believed that the Government's representatives needed no further
warning of the result of subpoenaing a witness and examining him
under oath.
MR. JUSTICE FRANKFURTER, dissenting.
It is beyond dispute that the Constitution does not compel
Congress to afford immunity from prosecution to those who testify
without invoking the constitutional privilege against
self-incrimination. The question for decision here is whether, by
the Act of June 30, 1906, 34 Stat. 798, amending the immunity
provision of the Act of February 25, 1903, 32 Stat. 904, Congress
granted more than the Constitution requires, and offered a
"gratuity to crime,"
Heike v. United States, 227 U.
S. 131,
227 U. S. 142,
by conferring immunity to persons who testify without claiming the
protection of the privilege against self-incrimination and who in
no way indicate that their testimony is being given in return for
the statutory immunity. In other words, did Congress, by that
amendment, seek to facilitate the enforcement of law by making
"evidence available and compulsory that otherwise could not be
got,"
id., or was it passing an act of amnesty?
This question cannot be answered by closing our eyes to
everything except the naked words of the Act of June 30, 1906. The
notion that, because the words of a statute are plain, its meaning
is also plain is merely pernicious oversimplification. It is a
wooden English doctrine of rather recent vintage (
see
Plucknett, A Concise History of the Common Law, 2d Ed., 294-300;
Amos, The Interpretation of Statutes, 5 Camb.L.J. 163; Davies, The
Interpretation of Statutes, 35 Col.L.Rev. 519), to which lip
service has on occasion been given here, but which, since
Page 317 U. S. 432
the days of Marshall, this Court has rejected, especially in
practice.
E.g., 6 U. S. Fisher,
2 Cranch 358,
6 U. S. 385-386;
Boston Sand Co. v. United States, 278 U. S.
41,
278 U. S. 48;
United States v. American Trucking Assns., 310 U.
S. 534,
310 U. S. 542,
310 U. S. 544.
A statute, like other living organisms, derives significance and
sustenance from its environment, from which it cannot be severed
without being mutilated. Especially is this true where the statute,
like the one before us, is part of a legislative process having a
history and a purpose. The meaning of such a statute cannot be
gained by confining inquiry within its four corners. Only the
historic process of which such legislation is an incomplete
fragment -- that to which it gave rise as well as that which gave
rise to it -- can yield its true meaning. And so we must turn to
the history of federal immunity provisions.
The earliest federal statute dealing with immunity is the Act of
January 24, 1857, 11 Stat. 155, as amended by the Act of January
24, 1862, 12 Stat. 333. This legislation, relating to testimony
before either House of Congress, furnished a model for later
immunity provisions. Congress was careful to state precisely what
it was for which immunity was given: "No witness shall hereafter be
allowed
to refuse to testify to any fact or to produce any
paper. . . ." 11 Stat. 156 (italics added). It was the refusal to
testify, not the refusal to appear as a witness, which Congress
took away and for which it gave immunity.
Duty, not privilege, lies at the core of this problem -- the
duty to testify, and not the privilege that relieves of such duty.
In the classic phrase of Lord Chancellor Hardwicke, "the public has
a right to every man's evidence." [
Footnote 2/1] The duty to give testimony was qualified
at
Page 317 U. S. 433
common law by the privilege against self-incrimination. And the
Fifth Amendment has embodied this privilege in our fundamental law.
But the privilege is a privilege to withhold answers, and not a
privilege to limit the range of public inquiry. The Constitution
does not forbid the asking of criminative questions. It provides
only that a witness cannot be compelled to answer such questions
unless "a full substitute" for the constitutional privilege is
given.
Counselman v. Hitchcock, 142 U.
S. 547,
142 U. S. 586.
The compulsion which the privilege entitles a witness to resist is
the compulsion to answer questions which he justifiably claims
would tend to incriminate him. But the Constitution does not
protect a refusal to obey a process. A subpoena is, of course, such
a process, merely a summons to appear. 8 Wigmore on Evidence (3d
ed.) p. 106, § 2199. There never has been a privilege to disregard
the duty to which a subpoena calls. And when Congress turned to the
device of immunity legislation, therefore, it did not provide a
"substitute" for the performance of the universal duty to appear as
a witness -- it did not undertake to give something for nothing. It
was the refusal to give incriminating testimony for which Congress
bargained, and not the refusal to give any testimony. And it was
only in exchange for self-incriminating testimony which "otherwise
could not be got" (
Heike v. United States, 227 U.
S. 131,
227 U. S. 142)
because of the witness' invocation of his constitutional rights
that Congress conferred immunity against the use of such
testimony.
Instead of giving more than the constitutional equivalent for
the privilege against self-incrimination, Congress for a long time
did not give enough.
See Counselman v. Hitchcock,
142 U. S. 547,
invalidating the Act of February 25, 1868, 15 Stat. 37, R.S. § 860,
the first immunity statute relating to judicial proceedings. In
order to remove the gap between what this Act gave and what the
Constitution was construed to require, Congress promptly
Page 317 U. S. 434
passed the Act of February 11, 1893, 27 Stat. 443, in order not
to interrupt the effective enforcement of the Interstate Commerce
Act. As the debates reveal, Congress acted on its understanding of
what this Court in the
Counselman decision indicated was
an adequate legislative alternative.
See remarks of
Senator Cullom, July 18, 1892, 23 Cong.Rec. 6333. The 1893 Act
followed the language of the Act of January 24, 1857, by providing
that "no person shall be
excused from attending and
testifying or from producing books. . . ." 27 Stat. 443
(italics added). And, in 1896, this Court, in
Brown v.
Walker, 161 U. S. 591,
161 U. S. 595,
found that the 1893 Act "sufficiently satisfies the constitutional
guaranty of protection." There was no indication of any belief that
Congress had given anything more than it had to give -- and,
indeed, only a bare majority of the Court thought that the statute
had given as much as the Constitution required.
Certainly, until the beginning of this century, therefore,
Congress displayed no magnanimity to criminals by affording amnesty
for their crimes. Indeed, so sensitive has Congress been against
immunizing crime that it has not entrusted prosecutors generally
with the power to relieve witnesses from prosecution in exchange
for incriminating evidence against others. But, as part of the
legislative program for the correction of corporate abuses,
Congress, in February, 1903, included provisions for immunity in
three additional measures, the Act of February 14, 1903, 32 Stat.
828, establishing the Department of Commerce and Labor and
conferring upon the Commissioner of Corporations the investigatory
powers possessed by the Interstate Commerce Commission, the Elkins
Amendment of February 19, 1903, 32 Stat. 848, to the Interstate
Commerce Act, and the Act of February 25, 1903, 32 Stat. 903, 904,
making large appropriations for the enforcement of the Interstate
Commerce Act, the Sherman Law, and other enactments. It is this
latter
Page 317 U. S. 435
provision, as amended by the Act of 1906, which is immediately
before us.
It was not until the startling decision of District Judge
Humphrey in
United States v. Armour & Co., 142 F. 808,
that the suggestion was seriously made that Congress, in studiously
fashioning a constitutional equivalent for the privilege against
self-incrimination, was playing Lady Bountiful to criminals. The
particular concerns which the
Armour opinion stirred must
be heeded, because they provoked the Act of 1906. The meaning of
that legislation is lost unless derived from the circumstances
which gave rise to it. The case arose out of a proceeding begun
under the Act of February 14, 1903, 32 Stat. 825, creating the
Department of Commerce and Labor. Section 8 of that Act provided
that the Secretary of Commerce and Labor shall "from time to time
make such special investigations and reports as he may be required
to do by . . . either House of Congress." In obedience to a
resolution of the House of Representatives, the Secretary directed
the Commissioner of Corporations to investigate the causes of the
low prices of beef cattle. Accordingly, the Commissioner instituted
such an inquiry. At a conference with officers of the packing
corporations and their counsel, the Commissioner explained the
purposes and scope of his investigation. He informed them that he
was acting independently, and not in cooperation with the
Department of Justice in its contemporaneous proceeding against the
"Beef Trust" for alleged violations of the Sherman Law, and that
any evidence obtained from the packers would not be given to the
Department, but would be reported only to the President for his
appropriate use. (H.Doc. No. 706, 59th Cong., 1st Sess., p. 6.)
Thereupon, the Commissioner's agents were afforded an opportunity
to examine the packers' books and papers.
Subsequently, an indictment under the Sherman Law was found
against the packing corporations and their
Page 317 U. S. 436
officers. Pleas in bar were filed, alleging in substance that,
as a result of the investigation made by the Commissioner of
Corporations, the defendants had obtained immunity from prosecution
for the offenses charged in the indictment. Judge Humphrey
sustained these pleas as to the individual defendants on the ground
that the information furnished by the defendants brought into
operation the immunity provision of the Act of February 14, 1903,
which incorporated by reference the Act of February 11, 1893, 27
Stat. 443, relating to testimony before the Interstate Commerce
Commission. Judge Humphrey reached his conclusion by attributing to
Congress in passing the Act of February 11, 1893, a purpose which
this Court later unanimously rejected in
Heike v. United
States, 227 U. S. 131.
For, while Judge Humphrey correctly held that "the privilege of the
amendment permits a refusal to answer," he also stated, quite
incorrectly and without any warrant in the language, legislative
history, or policy of the Act, that the statute "wipes out the
offense about which the witness might have refused to answer." 142
F. at 822. In other words, the district judge treated the immunity
act as though it were an act of amnesty, and that is precisely what
this Court in the
Heike case said it was not:
"Of course, there is a clear distinction between an amnesty and
the constitutional protection of a party from being compelled in a
criminal case to be a witness against himself. Amendment V. But the
obvious purpose of the statute [the Act of February 25, 1903] is to
make evidence available and compulsory that otherwise could not be
got. We see no reason for supposing that the act offered a gratuity
to crime. It should be construed, so far as its words fairly allow
the construction, as coterminous with what otherwise would have
been the privilege of the person concerned. We believe its policy
to be the same as that of the earlier act of February 11, 1893,
chap. 83, 27 Stat. at L. 443,
Page 317 U. S. 437
which read: 'No person shall be excused from attending and
testifying,' etc. 'But no person shall be prosecuted,' etc., as
now, thus showing the correlation between constitutional right and
immunity by the form."
227 U.S. at
227 U. S.
142.
Judge Humphrey doubtless fell into error because he treated the
immunity provision as subsidiary to the main purpose, as he
conceived it, of the Act establishing the Department of Commerce
and Labor. He believed "the primary purpose" of that Act was to
"secure information for the use of the legislative body." 142 F. at
826. It is plain that he did not view the immunity provisions in
their true light -- that is, as means to facilitate the
administration of the criminal law. Whatever justification Judge
Humphrey may have had for entertaining such a notion with regard to
the Act creating the Department of Commerce and Labor, it certainly
has no application to the immunity provisions touching the
Interstate Commerce Act and the Sherman Law. Those provisions were
enacted as aids in the enforcement of criminal justice; they were
not acts of amnesty designed to wipe out criminal offenses.
Acting swiftly to correct the error of the
Armour
decision, the President recommended that "the Congress pass a
declaratory act" to set aside Judge Humphrey's misconception of
congressional purpose. Message from the President of the United
States, April 18, 1906, H.Doc. No. 706, 59th Cong., 1st Sess., p.
3. In so doing, President Theodore Roosevelt was acting upon the
advice of Attorney General (soon to become Mr. Justice) Moody.
Naturally enough, the declaratory legislation directed itself to
the correction of the two evils that Judge Humphrey's opinion
projected, namely, to make it clear that immunity should not be
afforded for producing corporate documents which could, in any
event, be had because the privilege against self-crimination is not
available to corporations,
Page 317 U. S. 438
Wilson v. United States, 221 U.
S. 361,
221 U. S.
372-374, and that a person who does not give evidence
under the ordinary formalities incident to being a witness was not
entitled to immunity. The legislation was responsive to the
Government's position, as stated by Attorney General Moody:
"Upon these facts [in the
Armour case], the Government
contended that the statutory immunity could be conferred only upon
persons subpoenaed by the Commissioner of Corporations who might
subsequently give testimony or evidence (in the legal sense of
those terms) relating to the subject matter of the indictment."
H.Doc. No. 706, 59th Cong., 1st Sess., p. 7.
Such was the limited purpose of the 1906 amendment. Could it be
that the President having proposed, and the Congress having
enacted, a restrictive declaration regarding the scope of the
immunity provision in order to prevent other courts from following
the latitudinarian misconception of Judge Humphrey, the President
and the Congress, both acting upon the advice of one of the ablest
of Attorneys General, were unwittingly betrayed into introducing a
new gratuity for witnesses under duty to respond to a subpoena by
giving an amnesty in exchange for the mere response?
For more than seventeen years thereafter, it was unquestioned
that Congress had given no more than the Constitution required --
=freedom from prosecution for evidence that could not otherwise be
obtained, evidence that was withheld upon claim of constitutional
privilege, evidence that was given only because Congress had
provided immunity. This was the ruling of all the federal courts
which considered the question, courts on which sat some of the
ablest judges of their day -- Judge Martin in
United States v.
Heike, 175 F. 852; Judge Grubb in
United States v.
Skinner, 218 F. 870; Judge Hunt in
United States v.
Elton, 222 F. 428, and Judge Rose in
Johnson v. United
States, 5 F.2d 471. The narrow purpose of the 1906
Page 317 U. S. 439
amendment, in the light of the events which gave rise to it, was
succinctly set forth by Judge Rose:
"Quite clearly this act did only two things, and it was intended
to do no more. It made it clear that the immunity granted did not
inure to the benefit of corporations, and that a natural person
could not claim it unless he had testified in obedience to a
subpoena. It was passed to meet the serious situation which the
President and Congress thought had been created by the rulings of
Judge Humphrey. . . . It was clearly not intended to change the
previously existing law in any other respect. . . . A construction
should not be given to it which would result in a grand jury or
prosecuting officer unwittingly conferring immunity upon a serious
offender because, in the best of good faith and with no reason to
suppose that he was criminally involved in the transaction, he was
subpoenaed to produce some documents or to give some testimony
which perhaps could just as well have been obtained from other
sources. Unquestionably the witness has the constitutional right to
object to testifying. Then it is open to the government to elect
whether it will or will not proceed with his examination under the
statute, but if it does not, his rights remain as they were before
he was called to the stand."
Johnson v. United States, 5 F.2d 471, 477.
The observations of Judge Grubb in
United States v.
Skinner, 218 F. 870, 879, are equally pertinent here:
"The witness, in many cases, is alone informed as to whether his
evidence will tend to incriminate him. The supposed incrimination
may relate to offenses not under investigation by the examining
tribunal, and of the existence of which or of the relation of the
desired evidence to which the examining tribunal or the government
law officer may have no knowledge. The
Heike case is an
apt illustration of this possibility. The witness is likely to have
exclusive knowledge as to what facts and what answers may tend to
his incrimination, and with reference to what
Page 317 U. S. 440
offenses. Again, the witness alone knows whether he willingly
gives his evidence for the purpose of exonerating himself, or only
with the expectation of receiving immunity therefor. He is
therefore in a better position to be called upon to assert his
constitutional privilege than is the examining tribunal or the law
officer of the government to call upon him to elect to do so. If
any hardship attends the imposition of this burden on the witness,
it has never been considered weighty enough to relieve him
therefrom in exercising his constitutional privilege, prior to the
immunity statutes. The immunity granted by the statute is a mere
substitute for the constitutional safeguard, and has been held by
the Supreme Court to be coterminous with it. There would seem,
therefore, to be no reason for a different practice as to the
assertion of the privilege where immunity is desired and where the
constitutional privilege is insisted upon."
These decisions thus reflected weighty considerations of policy
in finding that Congress afforded immunity from prosecution only to
the extent that the Constitution required in exchange for a
privilege and that Congress was not giving away indulgences.
These considerations of policy were certainly not answered in
the opinion of the Texas district court which, in 1923, made the
first departure from this uniform construction of the statute. The
court held that immunity came merely because one testified in
obedience to a subpoena, without any claim, either explicit or
implied by the circumstances, that he had a constitutional right to
refuse to answer on the ground that he might thereby be
incriminated and that the testimony was being given only under
compulsion of the immunity statute.
United States v.
Pardue, 294 F. 543. The court stated that its position was
supported by the weight of authority, citing (1) the decision of
Judge Humphrey in the
Armour case; (2)
United States
v. Swift, 186 F. 1002, the opinion in
Page 317 U. S. 441
which, so far as it is relevant to the question here, seems to
point clearly the other way (see, especially, 186 F. at 1016-1018);
(3)
State v. Murphy, 128 Wis. 201, 107 N.W. 470, which,
much questioned originally, has been repudiated by the court which
rendered it,
Carchidi v. State, 187 Wis. 438, 204 N.W.
473, and
State v. Grosnickle, 189 Wis. 17, 206 N.W. 895,
and (4) a decision of the New York Court of Appeals,
People v.
Sharp, 107 N.Y. 427, 14 N.E. 319. In considering "the reasons
which should control," the district court was
"shocked by the unconscionableness of the claim . . . that the
government can, under a statute which . . . grants general amnesty
to persons who appear and testify in obedience to a subpoena,
compel them to testify, and thereafter break faith with them by
denying the protection of the statute to those who testify in exact
accordance with its terms."
294 F. at 547. Starting with the misconception that the immunity
provision was an act of amnesty, and not a
quid pro quo
for the constitutional privilege, the district court readily glided
into question-begging by finding that there was a breach of faith
in contesting the claim of amnesty. [
Footnote 2/2]
Once the confusion is avoided between an act of amnesty and an
act which gives immunity in order "to make evidence available and
compulsory that otherwise could not be got" because it could be
withheld upon a claim of constitutional privilege, it becomes clear
that a witness is not "entrapped" by requiring him to claim his
constitutional privilege before affording him a substitute. A
witness is no more entrapped by the requirement that he must
stand
Page 317 U. S. 442
upon his constitutional rights, if he desires their protection,
when there is an immunity statute than he is where there is none at
all. It is one thing to find that incriminating answers given by a
witness were given because, in the setting of the particular
circumstances, he would not have been allowed to withhold them. It
is quite another to suggest that one who appears as a witness
should, merely because his appearance is in obedience to a
subpoena, thereby obtain immunity "on account of any transaction,
matter or thing concerning which he may testify," even though the
incrimination may relate to a transaction wholly foreign to the
inquiry in which the testimony is given and even though the most
alert and conscientious prosecutor would not have the slightest
inkling that the testimony led to a trail of self-crimination. Such
a construction makes of the immunity statute not what its history
clearly reveals it to be, namely, a carefully devised instrument
for the achievement of criminal justice, but a measure for the
gratuitous relief of criminals. The statute reflects the judgment
of Congress that "the public has a right to every man's evidence."
It is not for us to relax the demands of society upon its citizens
to appear in proceedings to enforce laws enacted for the public
good.
Beginning with the Securities Act of 1933, 48 Stat. 87, Congress
has enacted no less than seventeen regulatory measures which
contain provisions for immunity from prosecution in exchange for
self-incriminating testimony. Of these fourteen, including,
inter alia, the Securities Exchange Act of 1934, 48 Stat.
900, the National Labor Relations Act, 49 Stat. 456, the
Communications Act of 1934, 48 Stat. 1097, the Public Utility
Holding Company Act of 1935, 49 Stat. 832, the Federal Power Act,
49 Stat. 858, and the Civil Aeronautics Act of 1938, 52 Stat. 1022,
confer immunity when a person testifies under compulsion "after
having claimed his privilege against self-incrimination."
Page 317 U. S. 443
Three of these statutes, however, the Motor Carrier Act of 1935,
49 Stat. 550, the Industrial Alcohol Act, 49 Stat. 875, § 11, and
the Fair Labor Standards Act of 1938, 52 Stat. 1065, do not contain
this additional clause -- they merely follow the old form
customarily used by Congress prior to the Securities Act of 1933.
Of course, there is a difference in the language of these statutory
provisions. But the process of construing a statute cannot end with
noting literary differences. The task is one of finding meaning,
and a difference in words is not necessarily a difference in the
meaning they carry. The question is not whether these provisions
are different, but whether there is significance in the difference.
If the difference in language reflected a difference in the scope
of the immunity given, or in the nature of the considerations that
moved Congress to make a differentiation, there would surely be
some indication, however faint, somewhere in the legislative
history of these enactments that some legislator was aware that the
difference in language had significance. But there is none.
If Congress saw fit gratuitously to confer immunity to citizens
who appear as witnesses in proceedings to enforce the Motor Carrier
Act of August 9, 1935, it is hard to understand why it should give
such immunity only to those who, after asserting their privilege,
were pressed to give evidence in proceedings to enforce the Federal
Power Act of August 26, 1935, and in proceedings to enforce the
Public Utility Holding Company Act which became law the same day,
and again should have given the privilege gratuitously in the
Industrial Alcohol Act, which became law the following day. The
Railroad Unemployment Insurance Act, 52 Stat. 1107, and the Fair
Labor Standards Act of 1938, 52 Stat. 1065, both became law the
same day, June 25, 1938. Yet the immunity provision of the former
contains the "after having claimed," etc. clause, and that of the
latter does not. It is only
Page 317 U. S. 444
fair to Congress to assume that, if there was a purpose to make
a difference in the demands upon citizens when they appear as
witnesses under one statute, rather than the other, that purpose
would have been stated somewhere in the course of the legislative
history. But there is a total absence of any indication anywhere
that any Congressman had any notion that the enforcement of the
Motor Carrier Act of 1935, the Industrial Alcohol Act, or the Fair
Labor Standards Act of 1938 called for a different treatment of
witnesses in proceedings under these Acts than in enforcement
proceedings under the other fourteen Acts. The explanation seems
obvious. There are no expressions in the legislative materials to
indicate that the legislative purpose varied in this respect
between these Acts, because there was no difference in purpose.
But the variations in the phraseology employed in the Acts are
not to be explained away as just caprices of a single draftsman.
The explanation is likely to be found in the manner in which
Congress usually acts in adopting regulatory legislation. If a
single draftsman had drafted each of these provisions in all
seventeen statutes, there might be some reason for believing that
the difference in language reflected a difference in meaning. But
it is common knowledge that these measures are frequently drawn at
least in the first instance, by specialists (perhaps connected with
interested government departments) in the various fields.
Provisions in different measures dealing with the same procedural
problem not unnaturally, therefore, lack uniformity of
phrasing.
We do not have to look very far in order to see how Congress
happened to use one form of immunity provision in some of these
statutes and another form in others. Consider the evolution of the
three statutes which followed the old, pre-1933, form. The Motor
Carrier Act of 1935 was enacted as an amendment to the Interstate
Commerce Act. What was more natural than that the
Page 317 U. S. 445
enforcement provisions of the old Act should be incorporated by
reference in providing for the new powers of the Commission. §§
201-205(e), 49 Stat. 543, 550. And the Industrial Alcohol Act of
1935, so far as its enforcement provisions were concerned, was
patterned upon its predecessor, the National Prohibition Act of
1919, 41 Stat. 317, and the draftsman naturally took the immunity
provision from that statute.
The Fair Labor Standards Act of 1938 has a more complicated, but
even more revealing, history. Introduced first in the Senate on May
24, 1937, it carried the explicit provision that a person gains
immunity "after having claimed his privilege against
self-incrimination." It remained in this form throughout the course
of the legislation in both the House and the Senate for nearly a
year, when the whole conception of the bill was changed. Everything
was struck out after the enacting clause, and the new measure was
submitted to the House on April 21, 1938. As part of that new bill,
the provision for the attendance of witnesses in the enforcement of
the Act simply incorporated by reference the provision of the
Federal Trade Commission Act -- and obviously this was because the
draftsmen of the new bill drew heavily upon the scheme of that Act.
But there is an utter want of evidence to support the suggestion
that, after a year, the proponents of this legislation and the
committees that grappled with its problems changed their minds as
to the extent of the immunity to be afforded to witnesses summoned
in proceedings under the Act. Nor is there any evidence in the
debates that, when Congress finally passed the measure in its
present form, it meant to give a greater immunity than that which
was provided in the various bills that were before the Senate and
the House for a year.
The course taken by the Securities Act of 1933 before it was
finally enacted is revealing as to the significance of
Page 317 U. S. 446
its immunity provision, the first to depart from the old form.
Up to the time that the bills which eventually became the Act
emerged from conference, the immunity provision followed the old
form. The new formula appears for the first time in the bill
reported by the conference. But neither in the conference report
nor elsewhere is there any suggestion that the introduction of this
phrase imported any new legislative purpose, or that it was
anything more than a careful rephrasing of a conventional statutory
provision. In the case of the Fair Labor Standards Act, as we have
seen, the more meticulous phrase "after having claimed his
privilege against self-incrimination" was in all successive bills
in both the House and the Senate, but it disappeared at the final
stage of the enactment of the measure. No one ever suggested, so
far as the available materials show, that the change in the formula
implied any change as to the intended scope of the immunity
provision. Style, not substance, is obviously the explanation. In
the case of one statute, Congress began with the new form and ended
with the old one; in the case of the other, it began with the old
one and ended with the new. Upon what rational basis can we
attribute to Congress an intention to make the scope of the
immunity provision of the one statute vitally different from that
of the other?
To attribute caprice to Congress is not to respect its rational
purpose when, as here, we find a uniform policy deeply rooted in
history, even though variously phrased, but always directed to the
same end of meeting the same constitutional requirement.
I am therefore of opinion that an appearance in response to a
subpoena does not, of itself, confer immunity from prosecution for
anything that a witness so responding may testify. There must be
conscious surrender of the privilege of silence in the course of a
testimonial inquiry. Of course, no form of words is necessary to
claim one's
Page 317 U. S. 447
privilege. Circumstances may establish such a claim. But there
must be some manifestation of surrender of the privilege. The
prosecutor's insistence upon disclosure which, but for immunity
from prosecution, could be withheld is that for which alone the
immunity is given. History and reason alike reject the notion that
immunity from prosecution is to be squandered by giving it
gratuitously for responding to the duty, owed by everyone, to
appear when summoned as a witness.
Since the demurrers to the pleas should have been sustained, the
case should be remanded to the district court for appropriate
disposition in accordance with the views herein expressed.
MR. JUSTICE DOUGLAS joins in this dissent.
[
Footnote 2/1]
Debate in the House of Lords on the Bill to indemnify Evidence,
12 Hansard's Parliamentary History of England, 675, 693, May 25,
1742, quoted in 8 Wigmore on Evidence (3d ed.) p. 64, § 2192.
[
Footnote 2/2]
It is significant that the
Heike case, in which this
Court held there was "no reason for supposing that the [immunity]
act offered a gratuity to crime," 227 U.S. at
227 U. S. 142,
was cited neither by the court below in this case, nor by Judge
Hutcheson in the
Pardue case, 294 F. 543, nor in any of
the cases following the
Pardue ruling,
United States
v. Ward, 295 F. 576,
United States v. Moore, 15 F.2d
593, and
United States v. Goldman, 28 F.2d
424.