1. Claiming that answers might tend to incriminate him of a
federal offense, petitioner refused to answer certain questions
asked him by a special federal grand jury making a comprehensive
investigation of violations of numerous federal criminal statutes
and conspiracies to violate them. He had been publicly charged with
being known as an underworld character and a racketeer with a
20-year police record, including a prison sentence on a narcotics
charge. The questions he refused to answer pertained to the nature
of his present occupation and his contacts and connections with,
and knowledge of the whereabouts of, a fugitive witness sought by
the same grand jury and for whom a bench warrant had been
requested. The judge who had impaneled the grand jury and was
familiar with these circumstances found no real and substantial
danger of incrimination to petitioner and ordered him to answer.
Petitioner stated that he would not obey the order, and he was
convicted of criminal contempt.
The conviction is reversed. Pp. 341 U. S.
(a) The privilege against self-incrimination guaranteed by the
Fifth Amendment extends not only to answers that would in
themselves support a conviction under a federal criminal statute,
but also to those which would furnish a link in the chain of
evidence needed to prosecute the claimant for a federal crime.
Blau v. United States, 340 U. S. 159
341 U. S.
(b) To sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is asked,
that a responsive answer to the question or an explanation of why
it cannot be answered might be dangerous because injurious
disclosure could result. Pp. 341 U. S.
(c) In this case, the court should have considered that the
chief occupation of some persons involves evasion of federal
criminal laws and that truthful answers by petitioner to the
questions as to the nature of his business might have disclosed
that he was engaged in such proscribed activity. Pp. 341 U. S.
Page 341 U. S. 480
(d) Answers to the questions as to his contacts and connections
with the fugitive witness and knowledge of his whereabouts at the
time might have exposed petitioner to peril of prosecution for
federal offenses ranging from obstruction to conspiracy. P.
341 U. S.
2. Two weeks after his conviction of contempt and denial of bail
pending appeal, petitioner filed in the District Court a paper
captioned "Petition for Reconsideration of Allowance of Bail
Pending Appeal," accompanied by an affidavit and exhibits
explaining his refusal to answer the questions and presenting facts
to justify his fear that answers would tend to incriminate him.
These papers were filed in the Court of Appeals as a supplemental
record on appeal, but that Court struck them from the record and
affirmed the conviction.
the supplemental record should have been
considered by the Court of Appeals, since it was actually directed
to the power of the committing court to discharge the contemnor for
good cause -- a power which courts should be solicitous to invoke
when important constitutional objections are renewed. Pp.
341 U. S.
185 F.2d 617 reversed.
In a federal district court, petitioner was convicted of
contempt for refusal to answer questions before a federal grand
jury. The Court of Appeals affirmed. 185 F.2d 617. This Court
granted certiorari. 340 U.S. 946. Reversed,
341 U. S.
MR. JUSTICE CLARK delivered the opinion of the Court.
Petitioner has been convicted of criminal contempt for refusing
to obey a federal court order requiring him to answer certain
questions asked in a grand jury investigation. He raises here
important issues as to the application of the privilege against
self-incrimination under the Fifth Amendment, claimed to justify
Page 341 U. S. 481
A special federal grand jury was convened at Philadelphia on
September 14, 1950, to investigate frauds upon the Federal
Government, including violations of the customs, narcotics, and
internal revenue liquor laws of the United States, the White Slave
Traffic Act, perjury, bribery, and other federal criminal laws, and
conspiracy to commit all such offenses. In response to subpoena
petitioner appeared to testify on the day the grand jury was
empaneled, and was examined on October 3. The pertinent
interrogation, in which he refused to answer, follows:
"Q. What do you do now, Mr. Hoffman?"
"A. I refuse to answer."
"Q. Have you been in the same undertaking since the first of the
"A. I don't understand the question."
"Q. Have you been doing the same thing you are doing now since
the first of the year?"
"A. I refuse to answer."
"Q. Do you know Mr. William Weisberg?"
"A. I do."
"Q. How long have you known him?"
"A. Practically twenty years, I guess."
"Q. When did you last see him?"
"A. I refuse to answer."
"Q. Have you seen him this week?"
"A. I refuse to answer."
"Q. Do you know that a subpoena has been issued for Mr.
"A. I heard about it in Court."
"Q. Have you talked with him on the telephone this week?"
"A. I refuse to answer."
"Q. Do you know where Mr. William Weisberg is now?"
"A. I refuse to answer. "
Page 341 U. S. 482
It was stipulated that petitioner declined to answer on the
ground that his answers might tend to incriminate him of a federal
Petitioner's claim of privilege was challenged by the Government
in the Federal District Court for the Eastern District of
Pennsylvania, which found no real and substantial danger of
incrimination to petitioner and ordered him to return to the grand
jury and answer. Petitioner stated in open court that he would not
obey the order, and, on October 5, was adjudged in criminal
contempt and sentenced to five months' imprisonment. 18 U.S.C. §
401; Federal Rule of Criminal Procedure 42(a).
Petitioner appealed to the Court of Appeals for the Third
Circuit, where the record was docketed on October 11. After denial
by the District Court of his request for bail pending appeal,
petitioner, on October 20, filed in that court a "Petition for
Reconsideration of Allowance of Bail Pending Appeal," alleging
"on the basis of the facts contained in his affidavit, attached
. . . he was justified in his refusal to answer the questions as
aforesaid, or, in any event, that there is so substantial a
question involved that your petitioner should be released on bail.
. . ."
In the accompanying affidavit, petitioner asserted that
"He assumed when he refused to answer the questions involved
before the Grand Jury, that both it and the Court were cognizant
of, and took into consideration, the facts on which he based his
refusals to answer."
"He has since been advised, after his commitment, that the Court
did not consider any of said facts upon which he relied and, on the
contrary, the Court considered only the bare record [of the
questions and answers as set out above]. "
Page 341 U. S. 483
"In the interest of justice, and particularly in aid of a proper
determination of the above petition, he submits the following in
support of his position that he genuinely feared to answer the
questions propounded: "
"(a) This investigation was stated, in the charge of the Court
to the Grand Jury, to cover 'the gamut of all crimes covered by
federal statute.' . . ."
"(b) Affiant has been publicly charged with being a known
underworld character, and a racketeer with a twenty-year police
record, including a prison sentence on a narcotics charge. . .
"(c) Affiant, while waiting to testify before the Grand Jury,
was photographed with one Joseph N. Bransky, head of the
Philadelphia office of the United States Bureau of Narcotics. . .
"(d) Affiant was questioned concerning the whereabouts of a
witness who had not been served with a subpoena and for whom a
bench warrant was sought by the Government prosecutor. . . ."
"On the basis of the above public facts, as well as the facts
within his own personal knowledge, affiant avers that he had a real
fear that the answers to the questions asked by the Grand Jury
would incriminate him of a federal offense."
Included as appendices to the affidavit were clippings from
local newspapers, of dates current with the grand-jury proceeding,
reporting the facts asserted in the affidavit. On October 23, the
District Court allowed bail. On the following day, the petition for
reconsideration of allowance of bail, including affidavit and
appendices, was filed in the Court of Appeals as a supplemental
record on appeal. The Government moved to strike this matter on the
ground that it was not properly part of the appeal record.
Page 341 U. S. 484
The Court of Appeals granted the motion to strike and affirmed
the conviction. 185 F.2d 617, 620 (1950). With respect to the
questions regarding Weisberg, the court held unanimously that
"the relationship between possible admissions in answer to the
questions . . . and the proscription of (pertinent federal criminal
statutes (18 U.S.C. §§ 371, 1501)) would need to be much closer for
us to conclude that there was real danger in answering."
As to the questions concerning petitioner's business, the court
observed that "[i]t is now quite apparent that the appellant could
have shown beyond question that the danger was not fanciful." In
the court's view, the data submitted in the supplemental record
"would rather clearly be adequate to establish circumstantially
the likelihood that appellant's assertion of fear of incrimination
was not mere contumacy."
But the Court of Appeals concluded, again unanimously, that the
information offered in support of the petition for reconsideration
of bail "was not before the court when it found appellant in
contempt, and therefore cannot be considered now." Thus, limited to
the record originally filed, the majority of the court was of the
opinion, with respect to the business questions, that
"the witness here failed to give the judge any information which
would allow the latter to rule intelligently on the claim of
privilege, for the witness simply refused to say anything, and gave
no facts to show why he refused to say anything."
One judge dissented, concluding that the District Court knew
that "the setting of the controversy" was "a grand jury
investigation of racketeering and federal crime in the vicinity,"
"should have adverted to the fact of common knowledge that there
exists a class of persons who live by activity prohibited by
federal criminal laws, and that some of these persons would be
summoned as witnesses in this grand jury investigation. "
Page 341 U. S. 485
Petitioner unsuccessfully sought rehearing in the Court of
Appeals, urging remand to the District Court to permit
reconsideration of the conviction on the basis of data in the
supplemental record. We granted certiorari, 340 U.S. 946
This is another of five proceedings before this Court during the
present Term, in each of which the privilege against
self-incrimination has been asserted in the course of federal grand
jury investigations. *
A number of
similar cases have been considered recently by the lower courts.
The signal increase in such litigation emphasizes the continuing
necessity that prosecutors and courts alike be "alert to repress"
any abuses of the investigatory power invoked, bearing in mind
that, while grand juries
"may proceed, either upon their own knowledge or upon the
examination of witnesses, to inquire . . . whether a crime
cognizable by the court has been committed,"
Hale v. Henkel, 201 U. S. 43
201 U. S. 65
"the most valuable function of the grand jury [has been] not
only to examine into the commission of crimes, but to stand between
the prosecutor and the accused,"
201 U.S. at 201 U. S. 59
Enforcement officials taking the initiative in grand jury
proceedings and courts charged with their superintendence should be
sensitive to the considerations making for wise exercise of such
investigatory power not only where constitutional issues may be
involved, but also where the noncoercive assistance of other
federal agencies may render it unnecessary to invoke the compulsive
process of the grand jury.
The Fifth Amendment declares in part that "[n]o person . . .
shall be compelled in any Criminal Case to be a witness
Page 341 U. S. 486
against himself." This guarantee against testimonial compulsion,
like other provisions of the Bill of Rights,
"was added to the original Constitution in the conviction that
too high a price may be paid even for the unhampered enforcement of
the criminal law, and that, in its attainment, other social objects
of a free society should not be sacrificed."
Feldman v. United States, 322 U.
, 322 U. S. 489
(1944). This provision of the Amendment must be accorded liberal
construction in favor of the right it was intended to secure.
Counselman v. Hitchcock, 142 U. S. 547
142 U. S. 562
(1892); Arndstein v. McCarthy, 254 U. S.
, 254 U. S. 72
The privilege afforded not only extends to answers that would in
themselves support a conviction under a federal criminal statute,
but likewise embraces those which would furnish a link in the chain
of evidence needed to prosecute the claimant for a federal crime.
(Patricia) Blau v. United States, 340 U.
(1950). But this protection must be confined to
instances where the witness has reasonable cause to apprehend
danger from a direct answer. Mason v. United States,
244 U. S. 362
244 U. S. 365
(1917), and cases cited. The witness is not exonerated from
answering merely because he declares that, in so doing he would
incriminate himself -- his say-so does not of itself establish the
hazard of incrimination. It is for the court to say whether his
silence is justified, Rogers v. United States,
340 U. S. 367
(1951), and to require him to answer if "it clearly appears to the
court that he is mistaken." Temple v. Commonwealth,
892, 899 (1880). However, if the witness, upon interposing his
claim, were required to prove the hazard in the sense in which a
claim is usually required to be established in court, he would be
compelled to surrender the very protection which the privilege is
designed to guarantee. To sustain the privilege, it need only be
evident from the implications of the question, in the setting in
which it is asked,
Page 341 U. S. 487
that a responsive answer to the question or an explanation of
why it cannot be answered might be dangerous because injurious
disclosure could result. The trial judge, in appraising the claim,
"must be governed as much by his personal perception of the
peculiarities of the case as by the facts actually in evidence."
Taft, J., in Ex parte Irvine,
74 F. 954, 960
What were the circumstances which the District Court should have
considered in ruling upon petitioner's claim of privilege? This is
the background as indicated by the record:
The judge who ruled on the privilege had himself impaneled the
special grand jury to investigate "rackets" in the district. He had
explained to the jury that
"the Attorney General's office has come into this district to
conduct an investigation . . . [that] will run the gamut of all
crimes covered by Federal statute."
"If rackets infest or encrust our system of government,' he
instructed, 'just as any blight attacks any other growth, it
withers and dies. . . .' Subpoenas had issued for some twenty
witnesses, but only eleven had been served; as the prosecutor put
it, he was 'having trouble finding some big shots.' Several of
those who did appear and were called into the grand jury room
before petitioner had refused to answer questions until ordered to
do so by the court. The prosecutor had requested bench warrants for
eight of the nine who had not appeared the first day of the
session, one of whom was William Weisberg. Petitioner had admitted
having known Weisberg for about twenty years. In addition, counsel
for petitioner had advised the court that 'It has been broadly
published that [petitioner] has a police record."
The court should have considered, in connection with the
business questions, that the chief occupation of some persons
involves evasion of federal criminal laws, and
Page 341 U. S. 488
that truthful answers by petitioner to these questions might
have disclosed that he was engaged in such proscribed activity.
Also, the court should have recognized, in considering the
Weisberg questions, that one person with a police record summoned
to testify before a grand jury investigating the rackets might be
hiding or helping to hide another person of questionable repute
sought as a witness. To be sure, the Government may inquire of
witnesses before the grand jury as to the whereabouts of unlocated
witnesses; ordinarily the answers to such questions are harmless,
if not fruitless. But of the seven questions relating to Weisberg
(of which three were answered), three were designed to draw
information as to petitioner's contacts and connection with the
fugitive witness, and the final question, perhaps an afterthought
of the prosecutor, inquired of Weisberg's whereabouts at the time.
All of them could easily have required answers that would forge
links in a chain of facts imperiling petitioner with conviction of
a federal crime. The three questions, if answered affirmatively,
would establish contacts between petitioner and Weisberg during the
crucial period when the latter was eluding the grand jury, and, in
the context of these inquiries, the last question might well have
called for disclosure that Weisberg was hiding away on petitioner's
premises or with his assistance. Petitioner could reasonably have
sensed the peril of prosecution for federal offenses ranging from
obstruction to conspiracy.
In this setting, it was not
"perfectly clear from a careful consideration of all the
circumstances in the case that the witness is mistaken, and that
the answer[s] cannot possibly
have such tendency"
to incriminate. Temple v. Commonwealth,
75 Va. 892, 898
(1880), cited with approval in Counselman v. Hitchcock,
142 U. S. 547
142 U. S.
Page 341 U. S. 489
See also Arndstein v. McCarthy, 254 U. S.
This conclusion is buttressed by the supplemental record. It
showed that petitioner had a twenty-year police record, and had
been publicly labeled an "underworld character and racketeer;" that
the Senate Crime Investigating Committee had placed his name on a
list of "known gangsters" from the Philadelphia area who had made
Miami Beach their headquarter; that Philadelphia police officials
had described him as "the king of the shore rackets, who lives by
the gun;" that he had served a sentence on a narcotics charge, and
that his previous conviction was dramatized by a picture appearing
in the local press while he was waiting to testify, in which
petitioner was photographed with the head of the Philadelphia
office of the United States Bureau of Narcotics in an accusing
It appears that the petition which comprised the supplemental
record, though captioned a "Petition for Reconsideration of
Allowance of Bail Pending Appeal," was, by its terms, an
application to the District Court to vacate the contempt order on
constitutional grounds, and alternatively a second motion for bail.
Clearly this petition, filed but two weeks after the contempt
order, was directed to the power of the committing court to
discharge the contemnor for good cause -- a power which courts
should be solicitous to invoke when important constitutional
objections are renewed. Cf. Gouled v. United States,
255 U. S. 298
(1921). The ends of justice require discharge of one having such a
right whenever facts appear sufficient to sustain the claim of
privilege. Accordingly, the supplemental record should have been
considered by the Court of Appeals.
For these reasons, we cannot agree with the judgments below. If
this result adds to the burden of diligence and efficiency resting
on enforcement authorities, any other
Page 341 U. S. 490
conclusion would seriously compromise an important
"The immediate and potential evils of compulsory self-disclosure
transcend any difficulties that the exercise of the privilege may
impose on society in the detection and prosecution of crime."
United States v. White, 322 U.
, 322 U. S. 698
(1944). Pertinent here is the observation of Mr. Justice Brandeis
for this Court in McCarthy v. Arndstein, 266 U. S.
, 266 U. S. 42
"If Congress should hereafter conclude that a full disclosure .
. . by the witnesses is of greater importance than the possibility
of punishing them for some crime in the past, it can, as in other
cases, confer the power of unrestricted examination by providing
MR. JUSTICE REED dissents. He agrees with the conclusions
reached by Judges Goodrich and Kalodner as expressed in the opinion
* (Patricia) Blau v. United States, 340 U.
(1950); (Irving) Blau v. United States,
340 U. S. 332
(1951); Rogers v. United States, 340 U.
(1951); Greenberg v. United States,
F.2d 35, 37 (1951), petition for writ of certiorari pending.