In obedience to a subpoena, petitioner appeared as a witness
before a Michigan circuit judge who was then conducting, in
accordance with Michigan law, a secret "one-man grand jury"
investigation of crime. After petitioner had given certain
testimony, the judge-grand jury, acting in the belief that his
testimony was false and evasive (which belief was based partly on
testimony given by at least one other witness in petitioner's
absence), summarily charged him with contempt, convicted him, and
sentenced him to sixty days in jail. These proceedings were secret,
and petitioner had no opportunity to secure counsel, to prepare his
defense, to cross-examine the other grand jury witness, or to
summon witnesses to refute the charge against him.
Held:
1. The secrecy of petitioner's trial for criminal contempt
violated the due process clause of the Fourteenth Amendment. Pp.
333 U. S.
266-273,
333 U. S.
278.
(a) The reasons advanced to support the secrecy of grand jury
investigative proceedings do not justify secrecy in the trial of a
defendant accused of an offense for which he may be fined or sent
to jail. Pp.
333 U. S.
264-266.
(b) An accused is entitled to a public trial, at least to the
extent of having his friends, relatives and counsel present -- no
matter with what offense he may be charged. Pp.
333 U. S.
271-272.
2. The failure to afford petitioner a reasonable opportunity to
defend himself against the charge of giving false and evasive
testimony was a denial of due process of law. Pp.
333 U. S.
273-278.
(a) As a minimum, due process requires that an accused be given
reasonable notice of the charge against him, the right to examine
the witnesses against him, the right to testify in his own behalf,
and the right to be represented by counsel. P.
333 U. S.
273.
(b) The circumstances of this case did not justify denial of
these rights on the ground that the trial was for contempt of court
committed in the court's actual presence.
Ex parte Terry,
128 U. S. 289,
distinguished. Pp. 273-278.
318 Mich. 7, 27 N.W.2d 323, reversed.
Page 333 U. S. 258
In a habeas corpus proceeding, the State Supreme Court denied
petitioner's release from imprisonment upon a sentence for
contempt. 318 Mich. 7, 27 N.W.2d 323. This Court granted
certiorari. 332 U.S. 755.
Reversed, p.
333 U. S.
278.
MR. JUSTICE BLACK delivered the opinion of the Court.
A Michigan circuit judge summarily sent the petitioner to jail
for contempt of court. We must determine whether he was denied the
procedural due process guaranteed by the Fourteenth Amendment.
In obedience to a subpoena, the petitioner appeared as a witness
before a Michigan circuit judge who was then conducting, in
accordance with Michigan law, a "one-man grand jury" investigation
into alleged gambling and official corruption. The investigation
presumably took place in the judge's chambers, though that is not
certain.
Page 333 U. S. 259
Two other circuit judges were present in an advisory capacity.
[
Footnote 1] A prosecutor may
have been present. A stenographer was most likely there. The record
does not show what other members, if any, of the judge's
investigatorial staff participated in the proceedings. It is
certain, however, that the public was excluded -- the questioning
was secret in accordance with the traditional grand jury
method.
After petitioner had given certain testimony, the judge-grand
jury, still in secret session, told petitioner that neither he nor
his advisors believed petitioner's story -- that it did not "jell."
This belief of the judge-grand jury was not based entirely on what
the petitioner had testified. As will later be seen, it rested in
part on beliefs or suspicions of the judge-jury derived from the
testimony of at least one other witness who had previously given
evidence in secret. Petitioner had not been present when that
witness testified, and, so far as appears, was not even aware that
he had testified. Based on its beliefs thus formed -- that
petitioner's story did not "jell" -- the judge-grand jury
immediately charged him with contempt, immediately convicted him,
and immediately sentenced him to sixty days in jail. Under these
circumstances of haste and secrecy, petitioner, of course, had no
chance to enjoy the benefits of counsel, no chance to prepare his
defense, and no opportunity either to cross examine the other grand
jury witness or to summon witnesses to refute the charge against
him.
Three days later, a lawyer filed on petitioner's behalf in the
Michigan Supreme Court -- the petition for habeas corpus now under
consideration. It alleged, among other
Page 333 U. S. 260
things, that the petitioner's attorney had not been allowed to
confer with him and that, to the best of the attorney's knowledge,
the petitioner was not held in jail under any judgment, decree or
execution, and was "not confined by virtue of any legal commitment
directed to the sheriff, as required by law." An order was then
entered, signed by the circuit judge, that he had, while "sitting
as a One-Man Grand Jury," convicted the petitioner of contempt of
court because petitioner had testified "evasively" and had given
"contradictory answers" to questions. The order directed that
petitioner
"be confined in the county jail . . . for a period of sixty days
. . . or until such time as he . . . shall appear and answer the
questions heretofore propounded to him by this Court. . . ."
The Supreme Court of Michigan, on grounds detailed in the
companion case of
In re Hartley, 317 Mich. 441, 27 N.W.2d
48, [
Footnote 2] rejected
petitioner's contention that the summary manner in which he had
been sentenced to jail in the secrecy of the grand jury chamber had
deprived him of his liberty without affording him the kind of
notice, opportunity to defend himself, and trial which the due
process clause of the Fourteenth Amendment
Page 333 U. S. 261
requires. [
Footnote 3]
In re Oliver, 318 Mich. 7, 27 N.W.2d 323. We granted
certiorari, 332 U.S. 755, to consider these procedural due process
questions.
The case requires a brief explanation of Michigan's unique
one-man grand jury system. [
Footnote 4] That state's first constitution (1835), like
the Fifth Amendment to the Federal Constitution, required that most
criminal prosecutions be begun by presentment or indictment of a
grand jury. Art. I, § 11. This compulsory provision was left out of
the 1850 constitution and from the present constitution (1908).
However, Michigan judges may still, in their discretion, summon
grand juries, but we are told by the attorney general that this
discretion is rarely exercised, and that the "One-Man Grand Jury"
has taken the place of the old Michigan 16 to 23-member grand jury,
particularly in probes of alleged misconduct of public
officials.
The one-man grand jury law was passed in 1917 following a
recommendation of the State Bar Association that, in
Page 333 U. S. 262
the interest of more rigorous law enforcement, greater emphasis
should be put upon the "investigative procedure" for "probing" and
for "detecting" crime. [
Footnote
5] With this need uppermost in its thinking, the Bar
Association recommended a bill which provided that justices of the
peace be vested with the inquisitorial powers traditionally
conferred only on coroners and grand juries. The bill as passed
imposed the recommended investigatory powers not only on justices
of the peace, but on police judges and judges of courts of record
as well. Mich.Laws 1917, Act 196.
Whenever this judge-grand jury may summon a witness to appear,
it is his duty to go and to answer all material questions that do
not incriminate him. Should he fail to appear, fail to answer
material questions, or should the judge-grand jury believe his
evidence false and evasive, or deliberately contradictory, he may
be found guilty of contempt. This offense may be punishable by a
fine of not more than $100, or imprisonment in the county jail not
exceeding sixty days, or both, at the discretion of the judge-grand
jury. If, after having been so sentenced, he appears and
satisfactorily answers the questions propounded by the judge-jury,
his sentence may, within the judge-jury's discretion, be commuted
or suspended. At the end of his first sentence, he can be
resummoned and subjected to the same inquiries. Should the
judge-jury again believe his answers false and evasive, or
contradictory, he can be sentenced to serve sixty days more unless
he reappears before the judge-jury during the second 60-day period
and satisfactorily answers the questions, and the judge-jury,
within
Page 333 U. S. 263
its discretion, then decides to commute or suspend his sentence.
[
Footnote 6]
In carrying out this authority a judge-grand jury is authorized
to appoint its own prosecutors, detectives and aides at public
expense, [
Footnote 7] all or
any of whom may, at the discretion of the justice of the peace or
judge, be admitted to the inquiry. Mich.Stat.Ann. § 28.944
(Henderson 1938). Comp.Laws 1929, § 17218. A witness may be asked
questions on all subjects, and need not be advised of his privilege
against self-incrimination, even though the questioning is in
secret. [
Footnote 8] And these
secret interrogations can be carried on day or night, in a public
place or a "hideout," a courthouse, an office building, a hotel
room, a home, or a place of business; so well is this ambulatory
power understood in Michigan that the one-man grand jury is also
popularly referred to as the "portable grand jury." [
Footnote 9]
It was a circuit court judge-grand jury before which petitioner
testified. That judge-jury filed in the State Supreme Court an
answer to this petition for habeas corpus. The answer contained
fragments of what was apparently a stenographic transcript of
petitioner's testimony given before the grand jury. It was these
fragments of testimony, so the answer stated, that the "Grand
Page 333 U. S. 264
Jury" had concluded to be "false and evasive." The petitioner
then filed a verified motion with the State Supreme Court seeking
to have the complete transcript of his testimony before the
judge-jury produced for the habeas corpus hearing. He alleged that
a full report of his testimony would disclose that he had freely,
promptly, and to the best of his ability, answered all questions
asked, and that the full transcript would refute the charge that he
had testified evasively or falsely. In his answer to the motion,
the circuit judge did not deny these allegations. However, he
asserted that the fragments contained in the original answer showed
"all of the Grand Jury testimony necessary to the present
proceeding," and that "the full disclosure of petitioner's
testimony would seriously retard Grand Jury activities." The State
Supreme Court then denied the petitioner's motion. Thus, when that
Court later dismissed the petition for habeas corpus, it had seen
only a copy of a portion of the record of the testimony given by
the petitioner.
The petitioner does not here challenge the constitutional power
of Michigan to grant traditional inquisitorial grand jury power to
a single judge, and therefore we do not concern ourselves with that
question. It has long been recognized in this country, however,
that the traditional 12- to 23-member grand juries may examine
witnesses in secret sessions. Oaths of secrecy are ordinarily taken
both by the members of such grand juries and by witnesses before
them. Many reasons have been advanced to support grand jury
secrecy.
See, e.g., Hale v. Henkel, 201 U. S.
43,
201 U. S. 58-66;
State v. Branch, 68 N.C. 186, 12 Am.Rep. 633. But those
reasons have never been thought to justify secrecy in the trial of
an accused charged with violation of law for which he may be fined
or sent to jail. Grand juries investigate, and the usual end of
their investigation is either a report, a "no-bill" or an
indictment.
Page 333 U. S. 265
They do not try, and they do not convict. They render no
judgment. When their work is finished by the return of an
indictment, it cannot be used as evidence against the person
indicted. Nor may he be fined or sentenced to jail until he has
been tried and convicted after having been afforded the procedural
safeguards required by due process of law. Even when witnesses
before grand juries refuse to answer proper questions, the grand
juries do not adjudge the witnesses guilty of contempt of court in
secret or in public or at all. [
Footnote 10] Witnesses who refuse to testify before grand
juries are tried on contempt charges before judges sitting in open
court. And though the powers of a judge, even when acting as a
one-man grand jury, may be, as Michigan holds, judicial in their
nature, [
Footnote 11] the
due process clause may apply with one effect on the judge's grand
jury investigation, but with quite a different effect when the
judge-grand jury suddenly makes a witness before it a defendant in
a contempt case.
Here, we are concerned not with petitioner's rights as a witness
in a secret grand jury session, but with his rights as a defendant
in a contempt proceeding. The powers of the judge-grand jury who
tried and convicted him in secret and sentenced him to jail on a
charge of false and evasive swearing must likewise be measured not
by the limitations applicable to grand jury proceedings, but by the
constitutional standards applicable to court proceedings in which
an accused may be sentenced to fine or imprisonment or both. Thus,
our first question is this:
Page 333 U. S. 266
can an accused be tried and convicted for contempt of court in
grand jury secrecy?
First. Counsel have not cited, and we have been unable
to find, a single instance of a criminal trial conducted
in
camera in any federal, [
Footnote 12] state, or municipal court during the history
of this country. Nor have we found any record of even one such
secret criminal trial in England since abolition of the Court of
Star Chamber in 1641, and whether that court ever convicted people
secretly is in dispute. Summary trials for alleged misconduct
called contempt of court [
Footnote 13] have not been regarded as an exception to
this universal rule against secret trials unless some other
Michigan one-man grand jury case may represent such an
exception.
This nation's accepted practice of guaranteeing a public trial
to an accused has its roots in our English common law heritage. The
exact date of its origin is obscure, but it likely evolved long
before the settlement of our land as an accompaniment of the
ancient institution of jury trial. [
Footnote 14] In this country, the guarantee to an accused
of
Page 333 U. S. 267
the right to a public trial first appeared in a state
constitution in 1776. [
Footnote
15] Following the ratification in 1791 of the Federal
Constitution's Sixth Amendment, which commands that, "In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial . . . ," most of the original states and
those subsequently admitted to the Union adopted similar
constitutional provisions. [
Footnote 16] Today, almost without exception, [
Footnote 17] every state, by
constitution, [
Footnote
18]
Page 333 U. S. 268
statute, [
Footnote 19] or
judicial decision, [
Footnote
20] requires that all criminal trials be open to the
public.
The traditional Anglo-American distrust for secret trials has
been variously ascribed to the notorious use of this practice by
the Spanish Inquisition, [
Footnote 21] to the excesses of
Page 333 U. S. 269
the English Court of Star Chamber, [
Footnote 22] and to the French monarchy's abuse of the
lettre de cachet. [
Footnote 23] All of these institutions obviously
symbolized a menace to liberty. In
Page 333 U. S. 270
the hands of despotic groups, each of them had become an
instrument for the suppression of political and religious heresies
in ruthless disregard of the right of an accused to a fair trial.
Whatever other benefits the guarantee to an accused that his trial
be conducted in public may confer upon our society, [
Footnote 24] the guarantee has always been
recognized as a safeguard against any attempt to employ our courts
as instruments of persecution. The knowledge that every criminal
trial is subject to contemporaneous review in the forum of public
opinion is an effective restraint on possible abuse of judicial
power. [
Footnote 25] One
need not wholly agree with a statement made on the subject by
Page 333 U. S. 271
Jeremy Bentham over 120 years ago to appreciate the fear of
secret trials felt by him, his predecessors and contemporaries.
Bentham said:
". . . suppose the proceedings to be completely secret, and the
court, on the occasion, to consist of no more than a single judge
-- that judge will be at once indolent and arbitrary; how corrupt
soever his inclination may be, it will find no check, at any rate
no tolerably efficient check, to oppose it. Without publicity, all
other checks are insufficient: in comparison of publicity, all
other checks are of small account. Recordation, appeal, whatever
other institutions might present themselves in the character of
checks, would be found to operate rather as cloaks than checks; as
cloaks in reality, as checks only in appearance. [
Footnote 26]"
In giving content to the constitutional and statutory commands
that an accused be given a public trial, the state and federal
courts have differed over what groups of spectators, if any, could
properly be excluded from a criminal trial. [
Footnote 27] But, unless in Michigan and in
one-man grand jury contempt cases, no court in this country has
ever before held, so far as we can find, that an accused can be
tried, convicted, and sent to jail when everybody else is denied
entrance to the court except the judge and his attaches. [
Footnote 28] And, without exception,
all courts have held
Page 333 U. S. 272
that an accused is, at the very least, entitled to have his
friends, relatives and counsel present, no matter with what offense
he may be charged. [
Footnote
29] In
Gaines v. Washington, 277 U. S.
81,
277 U. S. 85-86,
this Court assumed that a criminal trial conducted in secret would
violate the procedural requirements of the Fourteenth Amendment's
due process clause, although its actual holding there was that no
violation had in fact occurred, since the trial court's order
barring the general public had not been enforced. Certain
proceedings in a judge's chambers, including convictions for
contempt of court, have occasionally been countenanced by state
courts, [
Footnote 30] but
there has never been any intimation that all of the public,
including the accused's relatives, friends, and counsel, were
barred from the trial chamber.
In the case before us, the petitioner was called as a witness to
testify in secret before a one-man grand jury conducting a grand
jury investigation. In the midst of petitioner's testimony, the
proceedings abruptly changed. The investigation became a "trial,"
the grand jury became a judge, and the witness became an accused
charged with contempt of court -- all in secret. Following a
charge, conviction and sentence, the petitioner was led away to
Page 333 U. S. 273
prison -- still without any break in the secrecy. Even in jail,
according to undenied allegations, his lawyer was denied an
opportunity to see and confer with him. And that was not the end of
secrecy. His lawyer filed in the State Supreme Court this habeas
corpus proceeding. Even there, the mantle of secrecy enveloped the
transaction, and the State Supreme Court ordered him sent back to
jail without ever having seen a record of his testimony, and
without knowing all that took place in the secrecy of the judge's
chambers. In view of this nation's historic distrust of secret
proceedings, their inherent dangers to freedom, and the universal
requirement of our federal and state governments that criminal
trials be public, the Fourteenth Amendment's guarantee that no one
shall be deprived of his liberty without due process of law means
at least that an accused cannot be thus sentenced to prison.
Second. We further hold that failure to afford the
petitioner a reasonable opportunity to defend himself against the
charge of false and evasive swearing was a denial of due process of
law. A person's right to reasonable notice of a charge against him,
and an opportunity to be heard in his defense -- a right to his day
in court -- are basic in our system of jurisprudence, and these
rights include, as a minimum, a right to examine the witnesses
against him, to offer testimony, and to be represented by counsel.
[
Footnote 31] Michigan, not
denying the existence of these rights in criminal cases generally,
apparently concedes that the summary conviction here would have
been a denial of procedural due process but for the nature of the
charge,
Page 333 U. S. 274
namely, a contempt of court, committed, the State urges, in the
court's actual presence.
It is true that courts have long exercised a power summarily to
punish certain conduct committed in open court without notice,
testimony or hearing.
Ex parte Terry, 128 U.
S. 289, was such a case. There, Terry committed assault
on the marshal, who was at the moment removing a heckler from the
courtroom. The "violence and misconduct" of both the heckler and
the marshal's assailant occurred within the "personal view" of the
judge, "under his own eye," and actually interrupted the trial of a
cause then under way. This Court held that, under such
circumstances, a judge has power to punish an offender at once,
without notice and without hearing, although his conduct may also
be punishable as a criminal offense. This Court reached its
conclusion because it believed that a court's business could not be
conducted unless it could suppress disturbances within the
courtroom by immediate punishment. However, this Court recognized
that such departure from the accepted standards of due process was
capable of grave abuses, and for that reason gave no encouragement
to its expansion beyond the suppression and punishment of the
court-disrupting misconduct which alone justified its exercise.
Indeed, in the
Terry case, the Court cited with approval
its decision in
Anderson v.
Dunn, 6 Wheat. 204, which had marked the limits of
contempt authority in general as being "the least possible power
adequate to the end proposed."
Id. at
19 U. S. 231.
And see In re Michael, 326 U. S. 224,
326 U. S.
227.
That the holding in the
Terry case is not to be
considered as an unlimited abandonment of the basic due process
procedural safeguards, even in contempt cases, was spelled out with
emphatic language in
Cooke v. United States, 267 U.
S. 517, a contempt case arising in a federal district
court. There, it was pointed out that, for a
Page 333 U. S. 275
court to exercise the extraordinary but narrowly limited power
to punish for contempt without adequate notice and opportunity to
be heard, the court-disturbing misconduct must not only occur in
the court's immediate presence, but that the judge must have
personal knowledge of it acquired by his own observation of the
contemptuous conduct. This Court said that knowledge acquired from
the testimony of others, or even from the confession of the
accused, would not justify conviction without a trial in which
there was an opportunity for defense. Furthermore, the Court
explained the
Terry rule as reaching only such conduct as
created
"an open threat to the orderly procedure of the court and such a
flagrant defiance of the person and presence of the judge before
the public"
that, if "not instantly suppressed and punished, demoralization
of the court's authority will follow."
Id. at
267 U. S.
536.
Except for a narrowly limited category of contempts, due process
of law as explained in the
Cooke case requires that one
charged with contempt of court be advised of the charges against
him, have a reasonable opportunity to meet them by way of defense
or explanation, have the right to be represented by counsel, and
have a chance to testify and call other witnesses in his behalf,
either by way of defense or explanation. The narrow exception to
these due process requirements includes only charges of misconduct,
in open court, in the presence of the judge, which disturbs the
court's business, where all of the essential elements of the
misconduct are under the eye of the court, are actually observed by
the court, and where immediate punishment is essential to prevent
"demoralization of the court's authority . . . before the public."
If some essential elements of the offense are not personally
observed by the judge, so that the must depend upon statements made
by others for his knowledge about these essential elements, due
process requires, according to the
Page 333 U. S. 276
Cooke case, that the accused be accorded notice and a
fair hearing as above set out.
The facts shown by this record put this case outside the narrow
category of cases that can be punished as contempt without notice,
hearing, and counsel. Since the petitioner's alleged misconduct all
occurred in secret, there could be no possibility of a
demoralization of the court's authority before the public.
Furthermore, the answer of the judge-grand jury to the petition for
habeas corpus showed that his conclusion that the petitioner had
testified falsely was based, at least in part, upon the testimony
given before him by one or more witnesses other than petitioner.
Petitioner and one Hartley both testified the same day; both were
pin-ball machine operators; both had bought or had in their
possession certain so-called bonds purchased from one Mitchell;
both were sent to jail for contempt the same day.
In re
Hartley, 317 Mich. 441, 27 N.W.2d 48. The judge-grand jury
pressed both petitioner and Hartley to state why they bought bonds
which were patently worthless. The petitioner was also repeatedly
asked what he had done with the worthless bonds. He answered every
question asked him, according to the fragmentary portions of his
testimony reported to the Michigan Supreme Court, most of which is
included in that court's opinion. He steadfastly denied that he
knew precisely what he had done with the worthless bonds, but made
several different statements as to how he might have disposed of
them, such as that he might have thrown them into the wastebasket,
or trash can, or might have burned them.
In upholding the judge-grand jury's conclusion that petitioner
had testified falsely and evasively, the majority of the Michigan
Supreme Court gave as one reason a statement in the judge-grand
jury's answer
"That the Grand Jury, after investigation, is satisfied that the
bonds
Page 333 U. S. 277
sold by the said Carman A. Mitchell to the said William D.
Oliver are the same as those sold by the said Carman A. Mitchell to
Leo Thomas Hartley."
Nothing in the petitioner's testimony as reported could have
remotely justified the judge-jury in drawing such a conclusion. The
judge-jury was obviously appraising the truth of Oliver's testimony
in light of testimony given the same day in petitioner's absence by
Hartley, and possibly by other witnesses. The
Terry case
and others like it provide no support for sustaining petitioner's
conviction of contempt of court upon testimony given in
petitioner's absence. This case would be like the
Terry
case only if the judge there has not personally witnessed Terry's
assault upon the marshal, but had nevertheless sent him to jail for
contempt of court after hearing the testimony of witnesses against
Terry in Terry's absence. It may be conceivable, as is here urged,
that a judge can under some circumstances correctly detect falsity
and evasiveness from simply listening to a witness testify. But
this is plainly not a case in which the finding of falsity rested
on an exercise of this alleged power. For this reason, we need not
pass on the question argued in the briefs whether a judge can,
consistently with procedural due process, convict a witness of
testifying falsely and evasively solely on the judge's ability to
detect it from merely observing a witness and hearing him
testify.
Nor is there any reason suggested why "demoralization of the
court's authority" would have resulted from giving the petitioner a
reasonable opportunity to appear and offer a defense in open court
to a charge of perjury or to the charge of contempt. The
traditional grand juries have never punished contempts. [
Footnote 32] The practice that has
always been followed with recalcitrant grand jury witnesses
Page 333 U. S. 278
is to take them into open court, and that practice, consistent
with due process, has not demoralized the authority of courts.
Reported cases reveal no instances in which witnesses believed by
grand juries on the basis of other testimony to be perjurers have
been convicted for contempt or for perjury without notice of the
specific charges against them and opportunity to prepare a defense,
to obtain counsel, to cross-examine the witnesses against them and
to offer evidence in their own defense. The right to be heard in
open court before one is condemned is too valuable to be whittled
away under the guise of "demoralization of the court's
authority."
It is "the law of the land" that no man's life, liberty or
property be forfeited as a punishment until there has been a charge
fairly made and fairly tried in a public tribunal.
See Chambers
v Florida, 309 U. S. 227,
309 U. S.
236-237. The petitioner was convicted without that kind
of trial.
The judgment of the Supreme Court of Michigan is reversed, and
the cause is remanded to it for disposition not inconsistent with
this opinion.
Reversed and remanded.
[
Footnote 1]
Under certain circumstances, Michigan law permits circuit judges
to sit with other circuit judges in an advisory capacity.
Mich.Stat.Ann. § 27.188 (Henderson 1938), Mich.Comp.Laws 1929, §
13666.
[
Footnote 2]
In giving reasons in its
Hartley opinion for rejecting
this petitioner's constitutional contentions, the State Supreme
Court said it would have been an
"idle gesture to require such adjournment of the grand jury and
its reconvening as a circuit court. The circuit judge, while acting
as a one-man grand jury may, in appropriate cases, summarily
adjudge a witness testifying before him guilty of contempt and
impose sentence forthwith."
"Plaintiff's contempt, if any, was committed in the face of the
court, and required no extraneous proofs as to its occurrence. It
was direct, and there was, therefore, no necessity for filing of
charges, notice to accused and hearing as provided in 3 Comp.Laws
of 1929, § 13912, Stat.Ann. § 27.513. It was properly dealt with
summarily. 3 Comp.Laws 1929, §§ 13910, 13911, Stat.Ann. §§ 27.511,
27.512."
317 Mich. at 444, 445, 27 N.W.2d at 50.
[
Footnote 3]
By a four to four vote, the court also held that there was
"evidence to support the finding" of the judge-grand jury that
petitioner had testified falsely. Petitioner has argued here that
there was not a shred of evidence which under any circumstances
could have conceivably supported this finding, and thus that he was
deprived of his liberty without due process of law. In the view
that we take of this case, we find it unnecessary to consider this
constitutional contention.
[
Footnote 4]
The laws authorizing the system are found in Michigan Comp.Laws
1929, § 17217
et seq., Mich.Stat.Ann. § 28.943
et
seq. (Henderson 1938). A summary of the ten states' statutes
which have some similarities to Michigan's appears in Winters, The
Michigan One-Man Grand Jury, 28 J.Am.Jud.Soc. 137.
See,
e.g., Conn.Gen.Stat. § 889f (Supp.1941);
McCarthy v.
Clancy, 110 Conn. 482, 148 A. 551; Okla.Stat.Ann. tit. 37, §
83; tit. 21 § 951;
Ex parte Ballew, 20 Okl.Cr. 105, 201 P.
525.
[
Footnote 5]
Proceedings of the Twenty-sixth Annual Meeting of the Michigan
State Bar Association 101-105 (1916).
[
Footnote 6]
In re Ward, 295 Mich. 742, 747, 295 N.W. 483, 485.
(First 60-day conviction May 31, 1940, followed by second 60-day
conviction July 29, 1940. A $100 fine was also imposed in each
instance.)
[
Footnote 7]
In re Petition for Investigation of Recount, 270 Mich.
328, 331, 258 N.W. 776, 777;
In re Slattery, 310 Mich.
458, 479, 17 N.W.2d 251, 259.
[
Footnote 8]
People v. Wolfson, 264 Mich. 409, 413, 250 N.W. 260,
262;
In re Watson, 293 Mich. 263, 269, 291 N.W. 652, 655;
People v. Butler, 221 Mich. 626, 631, 632, 192 N.W. 685,
687.
[
Footnote 9]
Winters, The Michigan One-Man Grand Jury, 28 J.Am.Jud.Soc. 137,
143; Unprecedented Success in Criminal Courts, 26 J.Am.Jud.Soc.
42-43.
[
Footnote 10]
See cases collected in 8 A.L.R. 1579-1580; Orfield,
Criminal Procedure from Arrest to Appeal 161 (1947).
[
Footnote 11]
254-255;
Kloka v. Brake State Treasurer, 318 Mich. 87,
90, 27 N.W.2d 507, 508;
cf. Todd v. United States,
158 U. S. 278,
158 U. S. 284;
Interstate Commerce Commission v. Brimson, 154 U.
S. 447,
154 U. S. 481,
154 U. S. 489;
United States v.
Ferreira, 13 How. 40,
54 U. S.
44-48.
[
Footnote 12]
Cases within the jurisdiction of courts martial may be regarded
as an exception.
Ex parte Quirin, 317 U. S.
1,
317 U. S. 43;
King v. Governor of Lewes Prison, 61 Sol.J. 294, 30
Harv.L.Rev. 771. Whatever may be the classification of juvenile
court proceedings, they are often conducted without admitting all
the public. But it has never been the practice wholly to exclude
parents, relatives, and friends, or to refuse juveniles the benefit
of counsel.
[
Footnote 13]
Under Michigan law, contempt proceedings against a witness
before a one-man grand jury are criminal in nature.
In re
Wilkowski, 270 Mich. 687, 259 N.W. 658. But this
characterization is not material in resolving this due process
question.
Cf. Gompers v. United States, 233 U.
S. 604,
233 U. S. 610,
233 U. S.
611.
[
Footnote 14]
Radin, The Right to a Public Trial, 6 Temp.L.Q. 381-384. Early
commentators mention that public trials were commonly held without
attempting to trace their origin. Sir Thomas Smith in 1565 in his
De Republica Anglorum bk. 2, pp. 79, 101 (Alston ed.1906); Sir
Matthew Hale about 1670 in his History of The Common Law of England
343-345 (Runnington Ed.1820). In 1649, a few years after the Long
Parliament abolished the Court of Star Chamber, an accused charged
with high treason before a Special Commission of Oyer and Terminer
claimed the right to public trial and apparently was given such a
trial. Trial of John Lilburne, 4 How.St.Tr. 1270, 1274. "By
immemorial usage, wherever the common law prevails, all trials are
in open court, to which spectators are admitted." 2 Bishop, New
Criminal Procedure § 957 (2d Ed.1913).
[
Footnote 15]
Penn.Const., Declaration of Rights IX (1776); N.C.Const.
Declaration of Rights IX (1776) (criminal convictions only by jury
verdict in "open court").
[
Footnote 16]
See, e.g., Vt.Const., ch. I, art. 11 (1787);
Dela.Const. art. 1, § 7 (1792); Ky.Const. art. XII, cl. 10 (1792);
Tenn.Const. art. XI, § 9 (1796); Miss.Const. art. I, § 10 (1817);
Mich.Const. art. I, § 10 (1835); Tex.Const. art. I, § 8 (1845).
[
Footnote 17]
Four states, Massachusetts, New Hampshire, Virginia and Wyoming,
appear to have neither statutory nor constitutional provisions
specifically requiring that criminal trials be held in public,
although all have constitutions guaranteeing an accused the right
to a jury trial. Mass.Const. Pt. I, art. XII; N.H.Const. Pt. I,
arts. XV, XVI; Va.Const. art. I, § 8; Wyo.Const. art. I, § 10.
Massachusetts, by implication, has recognized that an accused has a
right to a public trial as well. A statute of that state permits
the exclusion of spectators in only a limited category of cases.
Mass.Gen.Laws c. 278, § 16A (1932). In New Hampshire and Wyoming,
no statute or decision has been found in which the right of an
accused to a public trial is mentioned. In Virginia, although no
decision has been discovered, a statute provides:
"In the trial of all criminal cases, whether the same be felony
or misdemeanor cases, the court may, in its discretion, exclude
from the trial any or all persons whose presence is not deemed
necessary."
Va.Code Ann. § 4906 (1942).
[
Footnote 18]
Forty-one states: Ala.Const. § 6; Ariz.Const. art. II, § 24;
Ark.Const. art. II, § 10; Cal.Const. art. I, § 13; Colo.Const. art.
II, § 16; Conn.Const. art. I, § 9; Del.Const. art. I, § 7;
Fla.Const. Declaration of Rights, § 11; Ga.Const. art. I, § 1, par.
5, Code, § 2-105; Idaho Const. art. I, § 13; Ill.Const. art. 2, §
9; Ind.Const. art. I, § 13; Iowa Const. art. I, § 10; Kan.Const.
Bill of Rights, § 10; Ky.Const. § 11; La.Const. art. I, § 9;
Me.Const. art. I, § 6; Mich.Const. art. 2, § 19; Minn.Const. art.
I; Miss.Const. § 26; Mo.Const. art. I; Mont.Const. art. I, § 16;
Neb.Const. art. I, § 11; N.J.Const. art. I, par. 8; N.M.Const. art.
II, § 14; N.C.Const. art. I, § 13 (no convictions for crime except
by jury verdict in "open court"); N.D.Const. art. I § 13; Ohio
Const. art. I, § 10; Okl.Const. art. 2, § 20; Or.Const. art. I, §
11; Pa.Const. art. I, § 9, P.S.; R.I.Const. art. I, § 10;
S.C.Const. art. I, § 18; S.D.Const. art. 6, § 7; Tenn.Const. art.
I, § 9; Tex.Const. art. I, § 10; Utah Const. art. I, § 12;
Vt.Const. ch. I, art. 10; Wash.Const. art. I, § 22; W.Va.Const.
art. III, § 14; Wis.Const. art. I, § 7.
[
Footnote 19]
Two states: Nev.Comp.Laws Ann. § 10654 (1929); N.Y.Civil Rights
Law, § 12.
[
Footnote 20]
The Maryland Court of Appeals has apparently interpreted the
state constitution as prohibiting secret trials.
Dutton v.
State, 123 Md. 373, 386-388, 91 A. 417, 422-423.
[
Footnote 21]
Radin, The Right to a Public Trial, 6 Temp.L.Q. 381, 389. The
criminal procedure of the civil law countries long resembled that
of the Inquisition in that the preliminary examination of the
accused, the questioning of witnesses, and the trial of the accused
were conducted in secret. Esmein, A History of Continental Criminal
Procedure 183-382 (1913); Ploscowe, Development of Inquisitorial
and Accusatorial Elements in French Procedure, 23 J.Crim.L. &
Criminology 372-386. The ecclesiastical courts of Great Britain,
which intermittently exercised a limited civil and criminal
jurisdiction, adopted a procedure described as,
"in name as well as in fact, an Inquisition, differing from the
Spanish Inquisition in the circumstances that it did not at any
time, as far as we are aware, employ torture, and that the bulk of
the business of the courts was of a comparatively unimportant kind.
. . ."
2 Stephen, History of the Criminal Law of England 402 (1883).
The secrecy of the ecclesiastical courts and the civil law courts
was often pointed out by commentators who praised the publicity of
the common law courts.
See e.g., 3 Blackstone,
Commentaries *373; 1 Bentham Rationale of Judicial Evidence,
594-595, 603 (1827). The English common law courts which succeeded
to the jurisdiction of the ecclesiastical courts have renounced all
claim to hold secret sessions in cases formerly within the
ecclesiastical jurisdiction, even in civil suits.
See, e.g.,
Scott v. Scott, [1913] A.C. 417.
[
Footnote 22]
Davis v. United States, 247 F. 394, 395;
Keddington
v. State, 19 Ariz. 457, 459, 172 P. 273;
Williamson v.
Lacy, 86 Me. 80, 82, 83, 29 A. 943, 944;
Dutton v.
State, 123 Md. 373, 387, 91 A. 417, 422; Jenks, The Book of
English Law 91 (3d Ed.1932). Some authorities have said that trials
in the Star Chamber were public, but that witnesses against the
accused were examined privately, with no opportunity for him to
discredit them. Apparently all authorities agreed that the accused
himself was grilled in secret, often tortured, in an effort to
obtain a confession, and that the most objectionable of the Star
Chamber's practices was its asserted prerogative to disregard the
common law rules of criminal procedure when the occasion demanded.
5 Holdsworth, A History of English Law, 163, 165, 180-197 (2d
Ed.1937); Radin, The Right to a Public Trial, 6 Temp.L.Q. 381,
386-388; Washburn, The Court of Star Chamber, 12 Am.L.Rev. 21,
25-31.
[
Footnote 23]
Radin, The Right to a Public Trial, 6 Temp.L.Q. 381, 388. The
lettre de cachet was an order of the king that one of his
subjects be forthwith imprisoned or exiled without a trial or an
opportunity to defend himself. In the eighteenth century, they were
often issued in blank to local police. Louis XV is supposed to have
issued more than 150,000
lettres de cachet during his
reign. This device was the principal means employed to prosecute
crimes of opinion, although it was also used by the royalty as a
convenient method of preventing the public airing of intra-family
scandals. Voltaire, Mirabeau and Montesquieu, among others,
denounced the use of the
lettre de cachet, and it was
abolished after the French Revolution, though later temporarily
revived by Napoleon. 13 Encyc. Brit. 971; 3 Encyc. Soc. Sci,
137.
[
Footnote 24]
Other benefits attributed to publicity have been:
(1) Public trials come to the attention of key witnesses unknown
to the parties. These witnesses may then voluntarily come forward
and give important testimony. 6 Wigmore, Evidence § 1834 (3d
Ed.,1940);
Tanksley v. United States, 145 F.2d 58, 59.
(2) The spectators learn about their government and acquire
confidence in their judicial remedies. 6 Wigmore, Evidence § 1834
(3d Ed. 1940); 1 Bentham, Rationale of Judicial Evidence 525
(1827); State v. Keeler, 52 Mont. 205, 156 P. 1080; 20 Harv.L.Rev.
489.
[
Footnote 25]
Jenks, The Book of English Law 91 (1932); Auld, Comparative
Jurisprudence of Criminal Process, 1 U. of Toronto L.J. 82, 99;
Radin, The Right to a Public Trial, 6 Temp.L.Q. 381; Criminal
Procedure in Scotland and England, 108 Edinburgh Rev. 174, 181-182;
Holmes, J. in
Cowley v. Pulsifer, 137 Mass. 392, 394;
State v. Osborne, 54 Or. 289, 295-297, 103 P. 62, 64-66.
People v. Murray, 89 Mich. 276, 286, 50 N.W. 995, 998:
"It is for the protection of all persons accused of crime -- the
innocently accused that they may not become the victim of an unjust
prosecution, as well as the guilty, that they may be awarded a fair
trial-that one rule [as to public trials] must be observed and
applied to all."
Frequently quoted is the statement in 1 Cooley, Constitutional
Limitations (8th Ed.1927) at 647:
"The requirement of a public trial is for the benefit of the
accused; that the public may see he is fairly dealt with and not
unjustly condemned, and that the presence of interested spectators
may keep his triers keenly alive to a sense of their responsibility
and to the importance of their functions. . . ."
[
Footnote 26]
1 Bentham, Rationale of Judicial Evidence 524 (1827).
[
Footnote 27]
Compare People v. Murray, 89 Mich. 276, 50 N.W. 995,
and People v. Yeager, 113 Mich. 228, 71 N.W. 491,
with
Reagan v. United States, 202 F. 488. For collection and
analysis of the cases,
see 6 Wigmore, Evidence § 1834 (3d
Ed.1940); Orfield, Criminal Procedure from Arrest to Appeal 385-387
(1947); Radin, The Right to a Public Trial, 6 Temp.L.Q. 381,
389-391; Note, 35 Mich.L.Rev. 474; 8 U. of Det.L.J. 129;
Tanksley v. United States, 145 F.2d 58.
[
Footnote 28]
"For the purposes contemplated by the provision of the
constitution, the presence of the officers of the court -- men who,
it is safe to say, were under the influence of the court -- made
the trial no more public than if they too had been excluded."
People v. Hartman, 103 Cal. 242, 244, 37 P. 153,
154.
[
Footnote 29]
See, e.g., State v. Beckstead, 96 Utah 528, 88 P.2d 461
(error to exclude friends and relatives of accused);
Benedict
v. People, 23 Colo. 126, 46 P. 637 (exclusion of all except
witnesses, members of bar and law students upheld);
People v.
Hall, 51 App.Div. 57, 64 N.Y.S. 433 (exclusion of general
public upheld where accused permitted to designate friends who
remained). "No court has gone so far as affirmatively to exclude
the press." Note, 35 Mich.L.Rev. 474, 476. Even those who deplore
the sensationalism of criminal trials and advocate the exclusion of
the general public from the courtroom would preserve the rights of
the accused by requiring the admission of the press, friends of the
accused, and selected members of the community. Radin, The Right to
a Public Trial, 6 Temp.L.Q. 381, 394-395; 20 J.Am.Jud.Soc. 139.
[
Footnote 30]
Cases are collected in 27 Ann.Cas. 35.
[
Footnote 31]
The following decisions of this Court involving various kinds of
proceedings are among the multitude that support the above
statement:
Snyder v. Massachusetts, 291 U. S.
97,
291 U. S. 116;
Powell v. Alabama, 287 U. S. 45,
287 U. S. 68-70;
Hovey v. Elliot, 167 U. S. 409,
167 U. S. 418;
Holden v. Hardy, 169 U. S. 366,
169 U. S.
390-391;
Morgan v. United States, 304 U. S.
1,
304 U. S. 14-15,
and cases there cited.
[
Footnote 32]
MR. JUSTICE RUTLEDGE, concurring.
I join in the Court's opinion and decision. But there is more
which needs to be said.
Michigan's one-man grand jury, as exemplified by this record,
combines in a single official the historically separate powers of
grand jury, committing magistrate, prosecutor, trial judge and
petit jury. This aggregated authority denies to the accused not
only the right to a public trial, but also those other basic
protections secured by the Sixth Amendment, namely, the rights
"to be informed
Page 333 U. S. 279
of the nature and cause of the accusation; [
Footnote 2/1] to be confronted with the witnesses
against him; [
Footnote 2/2] to have
compulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence."
It takes away the security against being twice put in jeopardy
for the same offense, [
Footnote
2/3] and denies the equal protection of the laws by leaving to
the committing functionary's sole discretion the scope and contents
of the record on appeal. [
Footnote
2/4] U.S.Const.Amends. V. and XIV.
This aggregation of powers and inherently concomitant denial of
historic freedoms were unknown to the common law at the time our
institutions crystallized in the Constitution. They are altogether
at variance with our tradition and system of government. They
cannot stand the test of constitutionally for purposes of depriving
any person of life, liberty or property. There is no semblance of
due process of law in the scheme when it is used for those ends.
[
Footnote 2/5]
Page 333 U. S. 280
The case demonstrates how far this Court departed from our
constitutional plan when, after the Fourteenth Amendment's
adoption, it permitted selective departure by the states from the
scheme of ordered personal liberty established by the Bill of
Rights. [
Footnote 2/6] In the guise
of permitting the states to experiment with improving the
administration of justice, the Court left them free to substitute,
"in spite of the absolutism of continental governments," their
"ideas and processes of civil justice" in place of the time-tried
"principles and institutions of the common law" [
Footnote 2/7] perpetuated for us in the Bill of
Rights. Only by an exercise of this freedom has Michigan been
enabled to adopt and apply her scheme as was done in this case. It
is the immediate offspring of
Hurtado v. California,
110 U. S. 516, and
later like cases. [
Footnote
2/8]
So long as they stand, so long as the Bill of Rights is regarded
here as a strait jacket of Eighteenth Century procedures, rather
than a basic charter of personal liberty, like experimentations may
be expected from the states. And the only check against their
effectiveness will be the agreement of a majority of this Court
that the experiment violates fundamental notions of justice in
civilized society.
I do not conceive that the Bill of Rights, apart from the due
process clause of the Fifth Amendment, incorporates all such ideas.
But as far as its provisions go, I know of no better substitutes. A
few may be inconvenient. But restrictions upon authority for
securing personal liberty, as well as fairness in trial to
deprive
Page 333 U. S. 281
one of it, are always inconvenient -- to the authority so
restricted. And, in times like these, I do not think substitutions
imported from other systems, including continental ones, offer
promise on the whole of more improvement than harm, either for the
cause of perfecting the administration of justice or for that of
securing and perpetuating individual freedom, which is the main end
of our society as it is of our Constitution.
One cannot attribute the collapse of liberty in Europe and
elsewhere during recent years solely to the "ideas and processes of
civil justice" prevailing in the nations which have suffered that
loss. Neither can one deny the significance of the contrast between
their success in maintaining systems of ordered liberty and that of
other nations which, in the main, have adhered more closely to the
scheme of personal freedoms the Bill of Rights secures. This
experience demonstrates, I think, that it is both wiser and safer
to put up with whatever inconveniences that charter creates than to
run the risk of losing its hard-won guaranties by dubious, if also
more convenient, substitutions imported from alien traditions.
[
Footnote 2/9]
Page 333 U. S. 282
The states have survived with the nation through great
vicissitudes, for the greater part of our history, without wide
departures or numerous ones from the plan of the Bill of Rights.
They accepted that plan for the nation when they ratified those
amendments. They accepted it for themselves, in my opinion, when
they ratified the Fourteenth Amendment.
Adamson v.
California, 332 U. S. 46,
dissenting opinions at
332 U. S. 68,
332 U. S. 123.
It was good enough for our fathers. I think it should be good
enough for this Court and for the states.
Room enough there is beyond the specific limitations of the Bill
of Rights for the states to experiment toward improving the
administration of justice. Within those limitations, there should
be no laboratory excursions unless or until the people have
authorized them by the constitutionally provided method. This is no
time to experiment with established liberties. That process carries
the dangers of dilution and denial with the chances of enforcing
and strengthening.
It remains only to say that, in the face of so broad a departure
from so many specific constitutional guaranties, or, if the other
view is to control, from their aggregate summarized in the concept
of due process as representing fundamental ideas of fair play and
justice in civilized society, such as the record in this case
presents, this Court's eyes need not remain closed nor its hand
idle until the case is returned to the state supreme court for
reaffirmation of its position or confirmation of our views
expressed in the Court's opinion. Neither
Rescue Army v.
Municipal Court, 331 U. S. 549, nor
Musser v. Utah, 333 U. S. 95,
presented a situation like the one tendered here, whether
Page 333 U. S. 283
in relation to the disentanglement of constitutional issues from
questions of state law or, consequently, in respect to the breadth
and clarity of the state's departure from federal constitutional
commands. Neither case therefore requires or justifies the
disposition of this cause according to the procedure there
followed. This case is neither unripe for decision nor wanting of
sufficient basis in the record for exercise of that function.
[
Footnote 2/1]
The requirement, of course, contemplates that the accused be so
informed sufficiently in advance of trial or sentence to enable him
to determine the nature of the plea to be entered and to prepare
his defense if one is to be made.
Cf. White v. Ragen,
324 U. S. 760,
324 U. S. 764;
Powell v. Alabama, 287 U. S. 435.
[
Footnote 2/2]
The only "witness" in this case was the grand jury-judge who, so
far as the record discloses, did not submit to
cross-examination.
[
Footnote 2/3]
As the Court's opinion notes, the state supreme court has held
that the witness may be reexamined and recommitted for a further
60-day period after serving the first sentence of that length,
unless he reappears and answers the same questions to the
satisfaction of the one-man grand jury.
In re Ward, 295
Mich. 742, 747, 295 N.W. 483.
[
Footnote 2/4]
Cf. Cochran v. Kansas, 316 U.
S. 255. So far as appears, only persons committed or
fined by a one-man grand jury are subjected in Michigan to this
attenuated appellate procedure. Others convicted of crime,
including criminal contempt, apparently are afforded rights to
complete and nondiscretionary records on appeal.
[
Footnote 2/5]
The immediate shift of the proceeding from inquisitorial to
punitive function converts it from a grand jury investigation to a
proceeding in criminal contempt.
[
Footnote 2/6]
Cf. Adamson v. California, 332 U. S.
46, dissenting opinion of MR. JUSTICE BLACK at
332 U. S.
68.
[
Footnote 2/7]
See Hurtado v. California, 110 U.
S. 516,
110 U. S.
531.
[
Footnote 2/8]
E.g., Twining v. New Jersey, 211 U. S.
78;
Adamson v. California, 332 U. S.
46.
[
Footnote 2/9]
I do not think it can be demonstrated that state systems, free
of the Bill of Rights' "inconveniences," have been more fair, just,
or efficient than the federal system of administering criminal
justice, which has never been clear of their restraints.
Notwithstanding
Betts v. Brady, 316 U.
S. 455, and its progeny, I cannot imagine that state
denial of the right to counsel beyond that permissible in the
federal courts, or, indeed, of any other guaranty of the Sixth
Amendment, could bring an improvement in the administration of
justice.
The guaranties seemingly considered most obstructive to that
process are those of the Fifth Amendment requiring presentment or
indictment of a grand jury and securing the privilege against
self-incrimination; the rights to jury trial and to the assistance
of counsel secured by the Sixth Amendment; and the requirements
relating to suits at common law of the Seventh Amendment. Whatever
inconveniences these or any of them may be thought to involve are
far outweighed by the aggregate of security to the individual
afforded by the Bill of Rights. That aggregate cannot be secured,
indeed it may be largely defeated, so long as the states are left
free to make broadly selective application of its protections.
MR. JUSTICE FRANKFURTER:
Under the Fourteenth Amendment, a State may surely adopt as its
own a procedure which was the established method for prosecuting
crime in nearly half the States which ratified that amendment. And
so it may abolish the grand jury, [
Footnote 3/1] or it may reduce the size of the grand
Page 333 U. S. 284
jury, and even to a single member. A State has great leeway in
devising its judicial instruments for probing into conduct as a
basis for charging the commission of crime. It may, at the same
time, surround such preliminary inquiry with safeguards, not only
that crime may be detected and criminals punished, but also that
charges may be sifted in secret, so as not to injure or embarrass
the innocent.
Flouting of such a judicial investigatory system may be
prevented by the hitherto constitutionally valid power to punish
for contempt. There must, however, be such recalcitrance, where the
basis of punishment is testimony given or withheld, that the
administration of justice is actively blocked.
See Ex parte
Hudgings, 249 U. S. 378. And
the procedural safeguards of "due process" must be observed. Due
notice of the charge and a fair opportunity to meet it are
indispensable. This involves an opportunity to canvass the charge
in the open, and not behind closed doors. So long as a man has
ample opportunity to demonstrate his innocence before he is hustled
off to jail, he cannot complain that a State has seen fit to devise
a new procedure for satisfying that opportunity. Just as it is not
violative of due process for a State to take private property for
public use and leave to a later stage the constitutional
vindication of the right to compensation, it does not seem to me
that it would be violative of due process to allow the judge-grand
juror of Michigan to find criminal contempt for conduct in his
proceedings without the familiar elements of an open trial,
provided that the State furnishes the accused a public tribunal
before which he has full opportunity to be quit of the finding.
But an opportunity to meet a charge of criminal contempt must be
a fair opportunity. It would not be fair if, in the court in which
the accused can contest for the first time the validity of the
charge against him, he comes
Page 333 U. S. 285
handicapped with a finding against him which he did not have an
adequate opportunity of resisting.
We are here dealing with the attempt of a State having the
seventh largest population in the Union to curb or mitigate the
commission of crimes by effective prosecution. This procedure has
been in operation for over thirty years. It was not heedlessly
entered into, nor has it been sporadically pursued. In a series of
cases, it has had the sanction of the highest court of Michigan.
While there are indications in the opinion of the Supreme Court of
Michigan from which we could infer the constitutional inadequacy of
the procedure pursued in this case, we should not decide
constitutional issues and conclude that the Michigan system offends
the Constitution of the United States without a clearer formulation
of what it is that actually happens under this system, or did
happen here, than the case before us reveals.
It is to me significant that the precise issues on which this
Court decides this case have never been explicitly challenged
before, or passed on, by the Supreme Court of Michigan in the
series of cases in which that court had adjudicated controversies
arising under the Michigan grand jury system. If a State has denied
the due process required by the Fourteenth Amendment, it is more
consonant with the delicate relations between the United States and
the courts of the United States, and the States and the courts of
the States, that the courts of the States be given the fullest
opportunity, by proper presentation of the issues, to make such a
finding of unconstitutionality.
I do not think that we have had that in this case. For instance,
while I could regard it inadmissible under the Fourteenth Amendment
to have only a partial and mutilated record of the proceedings
before the grand juror-judge when the contemnor for the first time
has the opportunity to meet the accusation against him publicly,
the petitioner himself in this case seems to repel the
Page 333 U. S. 286
suggestion that that is his complaint. [
Footnote 3/2] Certainly, as MR. JUSTICE JACKSON points
out, the first ground of the Court's opinion was not made the basis
for inviting our review here. I agree with him in concluding that,
in the light of our decision the other day in
Musser v.
Utah, 333 U. S. 95, in
conjunction with
Rescue Army v. Municipal Court,
331 U. S. 549, the
cause should be returned to the Supreme Court of Michigan to enable
that court to pass upon these issues.
MR. JUSTICE JACKSON, with whom MR. JUSTICE FRANKFURTER agrees,
dissenting.
The principal ground assigned for reversal of the judgment of
conviction is the alleged secrecy of the contempt procedure. That
ground was not assigned for review in the petition for certiorari
to this Court. Nor was it raised in the petition for writ of habeas
corpus in the state courts. Therefore, it has not been litigated,
and the record has not been made with reference to it. On the other
hand, the principal question raised by the petition to this Court
and argued by the State is not decided by the Court's opinion.
When a case here from a state court involves a question not
litigated below, not raised by petitioner here, and which the state
court has had no opportunity to pass upon, we should remand the
case for its further consideration, as was just done in
Musser
v. Utah, 333 U. S. 95.
[
Footnote 3/1]
In sustaining this power of the States, the Court enunciated a
principle the force of which has not lessened with time:
"The constitution of the United States was ordained, it is true,
by descendants of Englishmen, who inherited the traditions of the
English law and history; but it was made for an undefined and
expanding future, and for a people gathered, and to be gathered,
from many nations and of many tongues; and while we take just pride
in the principles and institutions of the common law, we are not to
forget that, in lands where other systems of jurisprudence prevail,
the ideas and processes of civil justice are also not unknown. Due
process of law, in spite of the absolutism of continental
governments, is not alien to that Code which survived the Roman
empire as the foundation of modern civilization in Europe, and
which has given us that fundamental maxim of distributive justice,
suum cuique tribuere. There is nothing in Magna Charta,
rightly construed as a broad charter of public right and law, which
ought to exclude the best ideas of all systems and of every age;
and as it was the characteristic principle of the common law to
draw its inspiration from every fountain of justice, we are not to
assume that the sources of its supply have been exhausted. On the
contrary, we should expect that the new and various experiences of
our own situation and system will mold and shape it into new and
not less useful forms."
Hurtado v. California, 110 U.
S. 516,
110 U. S.
530-531.
[
Footnote 3/2]
"Neither in our brief nor in our argument before the court have
we urged this court to reverse this conviction merely because the
partial return of the witness's testimony to the Supreme Court
constituted a denial of due process. . . . The questions we present
are much more basic -- the denial of due process in the original
commitment. . . . [To] us, it is much more shocking that an accused
charged with contempt not committed in open court be denied any
trial in the lower court than that he be given a trial only upon an
incomplete record in the appellate court."
Petitioner's "Brief in Answer to Brief of State Bar of
Michigan," pp. 13, 14.