Petitioner and two others were summoned to testify before a
congressional investigating committee. One of them refused to say
whether he was or had been a member of the Communist Party, basing
his refusal on "the First and Fifth Amendments," as well as "the
First Amendment to the Constitution, supplemented by the Fifth
Amendment." Petitioner adopted the other's statement as his own,
and refused to answer the same question. The committee did not ask
him to state more specifically the ground for his refusal to
answer, and did not specifically overrule his objection or direct
him to answer.
Held: in his trial for contempt of Congress under 2
U.S.C. § 192, the District Court should have entered a judgment of
acquittal. Pp.
349 U. S.
156-170.
1. Petitioner's references to the Fifth Amendment sufficiently
invoked his constitutional privilege against self-incrimination.
Pp.
349 U. S.
160-165.
(a) The constitutional guaranty against self-incrimination must
be construed liberally in favor of the right it was intended to
secure -- especially in criminal trials for refusal to answer. Pp.
349 U. S.
161-162.
(b) An answer to the question whether he was a member of the
Communist Party might have tended to incriminate petitioner.
Blau v. United States, 340 U. S. 159. P.
349 U. S.
162.
(c) If an objection to a question is made in any language that a
committee may reasonably be expected to understand as an attempt to
invoke the privilege, it must be respected both by the committee
and by a court in a prosecution under § 192. Pp.
349 U. S.
162-163.
(d) The mere fact that petitioner also relied on the First
Amendment did not preclude his reliance on the Fifth Amendment as
well. P.
349 U. S.
163.
(e) Petitioner's references to the Fifth Amendment were
sufficient to put the committee on notice of an apparent claim of
the privilege; and it then became incumbent on the committee either
to accept the claim or to ask petitioner whether he was, in fact,
invoking the privilege. Pp.
349 U. S.
163-165.
Page 349 U. S. 156
2. On the record in this case, there was not adequate proof of a
deliberate intentional refusal to answer, which is an essential
element of a violation of 2 U.S.C. § 192. Pp.
349 U. S.
165-170.
(a) This element of the offense, like any other, must be proved
beyond a reasonable doubt. P.
349 U. S.
115.
(b) Unless the witness is clearly apprised that the committee
demands his answer notwithstanding his objection, there can be no
conviction under § 192 for his refusal to answer. Pp.
349 U. S.
165-166.
(c) There is nothing in the record of the committee hearing from
which petitioner could have determined with a reasonable degree of
certainty that the committee demanded his answer despite his
objection. Pp.
349 U. S.
166-167.
(d) By the enactment of 2 U.S.C. § 192, Congress did not intend
to dispense with the traditional requirement that the witness must
be clearly apprised that an answer is demanded notwithstanding his
objection. Pp.
349 U. S.
167-170.
91 U.S.App.D.C. 344, 203 F.2d 20, reversed.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
Petitioner was convicted for contempt of Congress under 2 U.S.C.
§ 192 in the District Court of the District of Columbia. Section
192 provides for the punishment of any witness before a
congressional committee "who . . . refuses to answer any question
pertinent to the question under inquiry. . . ." [
Footnote 1] On appeal, the Court of
Appeals
Page 349 U. S. 157
for the District of Columbia Circuit reversed the conviction and
remanded the case for a new trial. [
Footnote 2] Claiming that the Court of Appeals should have
directed an acquittal, petitioner applied to this Court for
certiorari. We granted the writ because of the fundamental and
recurrent character of the questions presented. [
Footnote 3]
Pursuant to subpoena, petitioner appeared on August 10, 1949,
before a subcommittee of the Committee on Un-American Activities of
the House of Representatives. Petitioner was then a member and
field representative of the United Electrical, Radio and Machine
Workers of America. Also subpoenaed to appear on that day were
Thomas J. Fitzpatrick and Frank Panzino, two officers of the same
union. At the outset of the hearings, counsel for the committee
announced that the purpose of the investigation was to inquire into
"the question of Communist affiliation or association of certain
members" of the union and "the advisability of tightening present
security requirements in industrial plants working on certain
Government contracts." [
Footnote
4] All three witnesses were asked questions concerning alleged
membership in the Communist Party. All three declined to
answer.
Fitzpatrick was the first to be called to testify. He based his
refusal to answer on "the First and Fifth Amendments," as well as
"the First Amendment to the
Page 349 U. S. 158
Constitution, supplemented by the Fifth Amendment." [
Footnote 5] Immediately following
Fitzpatrick's testimony, Panzino was called to the stand. In
response to the identical questions put to Fitzpatrick, Panzino
specifically adopted as his own the grounds relied upon by
Fitzpatrick. [
Footnote 6] In
addition, at one point in his testimony, Panzino stated that, "I
think again, Mr. Chairman, under the Fifth Amendment, that is my
own personal belief." [
Footnote
7] On the following day, petitioner, unaccompanied by counsel,
was called to the stand and was also asked whether he had ever been
a member of the Communist Party. Like Panzino before him, he
declined to answer, specifically adopting as his own the grounds
relied upon by Fitzpatrick. [
Footnote 8]
Page 349 U. S. 159
On November 20, 1950, all three witnesses were indicted under §
192 for their refusals to answer. [
Footnote 9] The three cases were tried before different
judges, each sitting without a jury. Fitzpatrick and Panzino were
acquitted. In Fitzpatrick's case, it was held that his references
to "the First and Fifth Amendments" and "the First Amendment to the
Constitution, supplemented by the Fifth Amendment" constituted an
adequate means of invoking the Self-Incrimination Clause of the
Fifth Amendment. [
Footnote
10] Similarly, in Panzino's case, it was held that his
reference to "the Fifth Amendment" was sufficient to plead the
privilege. [
Footnote 11] In
petitioner's case, however, the District Court held that a witness
may not incorporate the position of another witness, and rejected
petitioner's defense based on the Self-Incrimination Clause.
[
Footnote 12] Petitioner was
accordingly convicted and sentenced to a term of six months in jail
and a fine of $500.
Page 349 U. S. 160
In reversing this conviction, the Court of Appeals, sitting en
banc, held that "[n]o formula or specific term or expression is
required" in order to plead the privilege, and that a witness may
adopt as his own a plea made by a previous witness. [
Footnote 13] Thus, the Court of Appeals
viewed the principal issue in the case as "whether Fitzpatrick did
or did not claim the privilege." [
Footnote 14] On this issue, a majority of the Court of
Appeals expressed no view. They agreed that a reversal, without
more, would be in order if they "were of clear opinion that
Fitzpatrick, and therefore Quinn, did claim the privilege." But
they were "not of that clear opinion." [
Footnote 15] The Court of Appeals therefore ordered a
new trial for determination of the issue by the District Court.
[
Footnote 16] The Court of
Appeals also directed the District Court on retrial to determine
whether petitioner "was aware of the intention of his inquirer that
answers were required despite his objections." [
Footnote 17] In that regard, however, it
rejected petitioner's contention that a witness cannot be convicted
under § 192 for a refusal to answer unless the committee overruled
his objections and specifically directed him to answer. [
Footnote 18]
It is from that decision that this Court granted certiorari.
I
There can be no doubt as to the power of Congress, by itself or
through its committees, to investigate matters and conditions
relating to contemplated legislation. This power, deeply rooted in
American and English institutions, is indeed coextensive with the
power to legislate. Without the power to investigate -- including,
of course, the
Page 349 U. S. 161
authority to compel testimony, either through its own processes
[
Footnote 19] or through
judicial trial [
Footnote 20]
-- Congress could be seriously handicapped in its efforts to
exercise its constitutional function wisely and effectively.
[
Footnote 21]
But the power to investigate, broad as it may be, is also
subject to recognized limitations. It cannot be used to inquire
into private affairs unrelated to a valid legislative purpose.
[
Footnote 22] Nor does it
extend to an area in which Congress is forbidden to legislate.
[
Footnote 23] Similarly, the
power to investigate must not be confused with any of the powers of
law enforcement; those powers are assigned under our Constitution
to the Executive and the Judiciary. [
Footnote 24] Still further limitations on the power to
investigate are found in the specific individual guarantees of the
Bill of Rights, such as the Fifth Amendment's privilege against
self-incrimination which is in issue here. [
Footnote 25]
The privilege against self-incrimination is a right that was
hard-earned by our forefathers. The reasons for its inclusion in
the Constitution -- and the necessities for its preservation -- are
to be found in the lessons of history. [
Footnote 26] As early as 1650, remembrance of the
horror of Star Chamber proceedings a decade before had firmly
established the privilege in the common law of England.
Transplanted to this country as part of our legal heritage, it soon
made its way into various state constitutions, and ultimately, in
1791, into the federal Bill of Rights. The privilege, this Court
has stated,
"was generally regarded then, as now,
Page 349 U. S. 162
as a privilege of great value, a protection to the innocent
though a shelter to the guilty, and a safeguard against heedless,
unfounded, or tyrannical prosecutions. [
Footnote 27]"
Coequally with our other constitutional guarantees, the
Self-Incrimination Clause "must be accorded liberal construction in
favor of the right it was intended to secure." [
Footnote 28] Such liberal construction is
particularly warranted in a prosecution of a witness for a refusal
to answer, since the respect normally accorded the privilege is
then buttressed by the presumption of innocence accorded a
defendant in a criminal trial. To apply the privilege narrowly or
begrudgingly -- to treat it as an historical relic, at most merely
to be tolerated -- is to ignore its development and purpose.
In the instant case, petitioner was convicted for refusing to
answer the committee's question as to his alleged membership in the
Communist Party. Clearly an answer to the question might have
tended to incriminate him. [
Footnote 29] As a consequence, petitioner was entitled to
claim the privilege. The principal issue here is whether or not he
did.
It is agreed by all that a claim of the privilege does not
require any special combination of words. [
Footnote 30] Plainly, a witness need not have
the skill of a lawyer to invoke the protection of the
Self-Incrimination Clause. If an objection
Page 349 U. S. 163
to a question is made in any language that a committee may
reasonably be expected to understand as an attempt to invoke the
privilege, it must be respected both by the committee and by a
court in a prosecution under § 192.
Here petitioner, by adopting the grounds relied upon by
Fitzpatrick, based his refusal to answer on "the First and Fifth
Amendments" and "the First Amendment to the Constitution,
supplemented by the Fifth Amendment." The Government concedes -- as
we think it must -- that a witness may invoke the privilege by
stating "I refuse to testify on the ground of the Fifth Amendment."
Surely, in popular parlance and even in legal literature, the term
"Fifth Amendment" in the context of our time is commonly regarded
as being synonymous with the privilege against self-incrimination.
The Government argues, however, that the references to the Fifth
Amendment in the instant case were inadequate to invoke the
privilege because Fitzpatrick's statements are more reasonably
understood as invoking rights under the First Amendment. We find
the Government's argument untenable. The mere fact that Fitzpatrick
and petitioner also relied on the First Amendment does not preclude
their reliance on the Fifth Amendment as well. [
Footnote 31] If a witness urges two
constitutional objections to a committee's line of questioning, he
is not bound at his peril to choose between them. By pressing both
objections, he does not lose a privilege which would have been
valid if he had only relied on one.
The Government, moreover, apparently concedes that petitioner
intended to invoke the privilege. In its brief the
Government points out
"the probability that petitioner's ambiguous references to the
Fifth Amendment
Page 349 U. S. 164
. . . were phrased deliberately in such vague terms so as to
enable petitioner . . . to obtain the benefit of the privilege
without incurring the popular opprobrium which often attaches to
its exercise. [
Footnote
32]"
But the fact that a witness expresses his intention in vague
terms is immaterial so long as the claim is sufficiently definite
to apprise the committee of his intention. As everyone agrees, no
ritualistic formula is necessary in order to invoke the privilege.
In the instant case, Quinn's references to the Fifth Amendment were
clearly sufficient to put the committee on notice of an apparent
claim of the privilege. It then became incumbent on the committee
either to accept the claim or to ask petitioner whether he was in
fact invoking the privilege. Particularly is this so if it is true,
as the Government contends, that petitioner feared the stigma that
might result from a forthright claim of his constitutional right to
refuse to testify. It is precisely at such times -- when the
privilege is under attack by those who wrongly conceive of it as
merely a shield for the guilty -- that governmental bodies must be
most scrupulous in protecting its exercise.
This ruling by no means leaves a congressional committee
defenseless at the hands of a scheming witness intent on deception.
When a witness declines to answer a question because of
constitutional objections and the language used is not free from
doubt, the way is always open for the committee to inquire into the
nature of the claim before making a ruling. If the witness
unequivocally and intelligently waives any objection based on the
Self-Incrimination Clause, or if the witness refuses a committee
request to state whether he relies on the Self-Incrimination
Clause, he cannot later invoke its protection
Page 349 U. S. 165
in a prosecution for contempt for refusing to answer that
question. Here, the committee made no attempt to have petitioner
particularize his objection. Under these circumstances, we must
hold that petitioner's references to the Fifth Amendment were
sufficient to invoke the privilege, and that the court below erred
in failing to direct a judgment of acquittal.
II
There is yet a second ground for our decision.
Section 192, like the ordinary federal criminal statute,
requires a criminal intent -- in this instance, a deliberate,
intentional refusal to answer. [
Footnote 33] This element of the offense, like any other,
must be proved beyond a reasonable doubt. Petitioner contends that
such proof was not, and cannot be, made in this case.
Clearly not every refusal to answer a question propounded by a
congressional committee subjects a witness to prosecution under §
192. Thus, if he raises an objection to a certain question -- for
example, lack of pertinency or the privilege against
self-incrimination -- the committee may sustain the objection and
abandon the question, even though the objection might actually be
without merit. In such an instance, the witness' refusal to answer
is not contumacious, for there is lacking the requisite criminal
intent. Or the committee may disallow the objection, and thus give
the witness the choice of answering or not. Given such a choice,
the witness may recede from his position and answer the question.
And if he does not then answer, it may fairly be said that the
foundation has been laid for a finding of criminal
Page 349 U. S. 166
intent to violate § 192. In short, unless the witness is clearly
apprised that the committee demands his answer notwithstanding his
objections, there can be no conviction under § 192 for refusal to
answer that question. [
Footnote
34]
Was petitioner so apprised here? At no time did the committee
specifically overrule his objection based on the Fifth Amendment;
nor did the committee indicate its overruling of the objection by
specifically directing petitioner to answer. In the absence of such
committee action, petitioner was never confronted with a clear-cut
choice between compliance and noncompliance, between answering the
question and risking prosecution for contempt. At best, he was left
to guess whether or not the committee had accepted his
objection.
This ambiguity in the committee's position is apparent from the
transcript of the hearing. [
Footnote 35] Immediately after petitioner stated that he
was adopting Fitzpatrick's objection, the committee chairman asked
petitioner:
". . . will you now answer the question whether you are now or
ever have been a member of the Communist Party, or do you decline
to answer?"
In response to this, petitioner stated for the first time that
he would not answer.
Page 349 U. S. 167
He said: "I decline to discuss with the committee questions of
that nature." Committee counsel thereupon stated that further
questioning "relating to those matters" was "not necessary," and
proceeded upon a new line of inquiry. There is nothing in this
colloquy from which petitioner could have determined with a
reasonable degree of certainty that the committee demanded his
answer despite his objection. Rather, the colloquy is wholly
consistent with the hypothesis that the committee had, in fact,
acquiesced in his objection.
Our view that a clear disposition of the witness' objection is a
prerequisite to prosecution for contempt is supported by
longstanding tradition here and in other English-speaking nations.
[
Footnote 36] In this
country, the tradition
Page 349 U. S. 168
has been uniformly recognized in the procedure of both state and
federal courts. [
Footnote
37] It is further reflected in the practice of congressional
committees prior to the enactment of § 192 in 1857; a specific
direction to answer was the means then used to apprise a witness of
the overruling of his objection. [
Footnote 38] Against this background, § 192 became
Page 349 U. S. 169
law. [
Footnote 39] No
relaxation of the safeguards afforded a witness was contemplated by
its sponsors. In explaining the bill in the House, Congressman
Davis expressly stated that committee powers were not increased,
that no added burden was placed upon the witness, and that a "mere
substitution" of a judicial proceeding for punishment at the bar of
Congress was intended. [
Footnote
40] The reason for enacting § 192 went to the punishment, and
not the offense. It was recognized that the power of Congress to
deal with a contemnor by its own processes did not extend beyond
the life of any session. [
Footnote 41] By making contempt of Congress a crime, a
fixed term of imprisonment was substituted for variable periods of
congressional custody dependent upon the fortuity of whether the
contemnor had been called to testify near the beginning or the end
of a session. [
Footnote 42]
But there is nothing to indicate that this change in the mode of
punishment affected in any way the well established elements of
contempt of Congress. Since the enactment of § 192, the practice of
specifically directing a recalcitrant witness to answer has
continued to prevail. [
Footnote
43] In fact, the very committee involved here, the
Page 349 U. S. 170
House Un-American Activities Committee, originally followed this
practice, [
Footnote 44] and
recently resumed it. [
Footnote
45]
Giving a witness a fair apprisal of the committee's ruling on an
objection recognizes the legitimate interests of both the witness
and the committee. Just as the witness need not use any particular
form of words to present his objection, so also the committee is
not required to resort to any fixed verbal formula to indicate its
disposition of the objection. So long as the witness is not forced
to guess the committee's ruling, he has no cause to complain. And
adherence to this traditional practice can neither inflict hardship
upon the committee nor abridge the proper scope of legislative
investigation.
III
Petitioner also attacks his conviction on grounds involving
novel constitutional issues. He contends that the House Resolution
authorizing the committee's operations is invalid under the First
Amendment. In addition, petitioner contends that the trial court
erred in denying a hearing on the alleged bias of the indicting
grand jury. Our disposition of the case makes it unnecessary to
pass on these issues.
The judgment below is reversed, and the case remanded to the
District Court with directions to enter a judgment of
acquittal.
Reversed.
Page 349 U. S. 171
[
Footnote 1]
The section provides in full:
"Every person who having been summoned as a witness by the
authority of either House of Congress to give testimony or to
produce papers upon any matter under inquiry before either House,
or any joint committee established by a joint or concurrent
resolution of the two Houses of Congress, or any committee of
either House of Congress, willfully makes default, or who, having
appeared, refuses to answer any question pertinent to the question
under inquiry, shall be deemed guilty of a misdemeanor, punishable
by a fine of not more than $1,000 nor less than $100 and
imprisonment in a common jail for not less than one month nor more
than twelve months."
[
Footnote 2]
91 U.S.App.D.C. 344, 203 F.2d 20.
[
Footnote 3]
347 U.S. 1008.
[
Footnote 4]
Hearings before House Committee on Un-American Activities
Regarding Communist Infiltration of Labor Unions, 81st Cong., 1st
Sess. Part 1, 541-542.
[
Footnote 5]
Id. at 602, 604.
[
Footnote 6]
Id. at 608.
[
Footnote 7]
Id. at 609.
[
Footnote 8]
Id. at 634-635:
"Mr. QUINN. I would like to make a statement along the lines
that Mr. Fitzpatrick made yesterday in regard to a question of that
nature. I feel that the political beliefs, opinions, and
associations of the American people can be held secret if they so
desire."
"Mr. WOOD. And, for those reasons, do you decline to answer that
question?"
"Mr. QUINN. I didn't say I was declining to answer the question.
Before I do answer the question, I should like to say that I
support the position taken by Brother Fitzpatrick yesterday."
"Mr. WOOD. Did you hear his statement yesterday?"
"Mr. QUINN. Yes; I did."
"Mr. WOOD. Do you support it in its entirety?"
"Mr. QUINN. In its entirety."
"Mr. WOOD. Is there anything else you want to add to it?"
"Mr. QUINN. No, I don't."
"Mr. WOOD. Will you accept it as the expression of your views,
then?"
"Mr. QUINN. You may. I may add I feel I have no other choice in
this matter, because the defense of the Constitution I hold sacred.
I don't feel I am hiding behind the Constitution, but in this case
I am standing before it, defending it, as small as I am."
"Mr. WOOD. Having made that statement and subscribed to the
sentiments expressed by the witness yesterday to whom you referred,
will you now answer the question whether you are now or have ever
been a member of the Communist Party?"
"Mr. QUINN. I hold that the Constitution holds sacred the rights
of people --"
"Mr. WOOD. You have stated your position. Having enunciated your
sentiments and your position, will you now answer the question
whether you are now or ever have been a member of the Communist
Party, or do you decline to answer?"
"Mr. QUINN. I decline to discuss with the committee questions of
that nature."
"Mr. WOOD. Proceed, Mr. Tavenner."
"Mr. TAVENNER. I believe, in the light of that answer, it is not
necessary to ask you any further questions relating to those
matters, so I will ask you this: do you know Mr. James J.
Matles?"
"Mr. QUINN. Yes."
[
Footnote 9]
Petitioner's motions to dismiss the indictment were denied
sub nom. United States v. Emspak, 95 F. Supp.
1010,
1012.
[
Footnote 10]
United States v. Fitzpatrick, 96 F. Supp.
491, 493.
[
Footnote 11]
United States v. Panzino, unreported, Criminal No.
1747-50 (D.D.C.).
[
Footnote 12]
United States v. Quinn, unreported, Criminal No.
1744-50 (D.D.C.).
[
Footnote 13]
91 U.S.App.D.C. 344, 347, 203 F.2d 20, 23.
[
Footnote 14]
Id., 91 U.S.App.D.C. at 347, 203 F.2d at 23.
[
Footnote 15]
Id., 91 U.S.App.D.C. at 348, 203 F.2d at 24.
[
Footnote 16]
Ibid.
[
Footnote 17]
Id., 91 U.S.App.D.C. at 349, 203 F.2d at 25.
[
Footnote 18]
Ibid.
[
Footnote 19]
Cf. 19 U. S. Dunn,
6 Wheat. 204.
[
Footnote 20]
In re Chapman, 166 U. S. 661.
[
Footnote 21]
See McGrain v. Daugherty, 273 U.
S. 135,
273 U. S.
175.
[
Footnote 22]
Id. at
273 U. S.
173-174;
Kilbourn v. Thompson, 103 U.
S. 168,
103 U. S.
190.
[
Footnote 23]
Compare United States v. Rumely, 345 U. S.
41,
345 U. S.
46.
[
Footnote 24]
Kilbourn v. Thompson, 103 U. S. 168,
103 U. S.
192-193.
[
Footnote 25]
The Amendment provides in pertinent part that "No person . . .
shall be compelled in any criminal case to be a witness against
himself. . . ."
[
Footnote 26]
See Griswold, The Fifth Amendment Today, 2-7.
[
Footnote 27]
Twining v. State of New Jersey, 211 U. S.
78,
211 U. S. 91.
See also Boyd v. United States, 116 U.
S. 616,
116 U. S.
631-632.
[
Footnote 28]
Hoffman v. United States, 341 U.
S. 479,
341 U. S. 486.
Cf. Counselman v. Hitchcock, 142 U.
S. 547,
142 U. S.
562.
[
Footnote 29]
Blau v. United States, 340 U.
S. 159, specifically holding that such a question is
protected by the privilege;
Brunner v. United States, 343
U.S. 918,
reversing 190 F.2d 167.
See also Hoffman v.
United States, 341 U. S. 479.
[
Footnote 30]
Compare Smith v. United States, 337 U.
S. 137, where the Court characterized a witness'
statement "I want to claim privilege as to anything that I say",
337 U.S. at
337 U. S. 142,
as a "definite claim of general privilege against
self-incrimination." 337 U.S. at
337 U. S.
151.
[
Footnote 31]
As to the close relationship between the First Amendment and the
privilege against self-incrimination,
see Griswold,
supra, note 26 at
8-9
[
Footnote 32]
Brief for United States, p. 33. The Government makes the same
contention as to the petitioner in
Emspak v. United
States, 349 U. S. 190.
[
Footnote 33]
Sinclair v. United States, 279 U.
S. 263,
279 U. S. 299.
See also In re Chapman, 166 U. S. 661,
166 U. S. 672,
in which the Court, while upholding the constitutionality of the
statute, recognized deliberateness as an element of the
offense.
[
Footnote 34]
See United States v. Kamp, 102 F. Supp. 757, 759:
"Committees of Congress must conduct examinations in such a
manner that it is clear to the witness that the Committee
recognizes him as being in default, and anything short of a clear
cut default on the part of the witness will not sustain a
conviction for contempt of Congress. The transcript of the
defendant Kamp's testimony fails to disclose such a clear cut
default. The witness is not required to enter into a guessing game
when called upon to appear before a committee. The burden is upon
the presiding member to make clear the directions of the committee,
to consider any reasonable explanations given by the witness, and
then to rule on the witness' response."
The defendant was accordingly acquitted.
On similar grounds, an acquittal was directed in
United
States v. Browder, unreported, Criminal No. 1784-50
(D.D.C.).
[
Footnote 35]
See note 8
supra.
[
Footnote 36]
While of course not binding on Congress or its committees, the
practice in the States and other English-speaking jurisdictions is
at least worthy of note.
For examples relating to recalcitrant witnesses before state
legislative committees,
see Ex parte McCarthy, 29 Cal.
395, 398;
People v. Keeler, 99 N.Y. 463, 471, 2 N.E. 615,
617;
Lowe v. Summers, 69 Mo.App. 637, 645.
Recalcitrant witnesses before investigating committees of the
British House of Commons have traditionally been apprised of the
disposition of their objections and given subsequent opportunity to
respond before being subjected to the contempt power of the
legislature. The practice has been as follows: the committee
reports the failure to answer to the House. The witness is
questioned about the cause of the refusal to answer before the Bar
of the House. The House then votes on the validity of the
objection. If the claim is rejected, the witness is specifically
directed to answer. Only after a subsequent refusal is punishment
imposed.
See 88
Journals of the House of Commons
212, 218 (Case of Elizabeth Robinson before Select Committee on
Liverpool Bribery, 1833); 90
Journals of the House of
Commons 501, 504, and 29 Hans.Deb., 3d Ser. 1249, 1279-1288
(Case of William Prentice before Select Committee on Great Yarmouth
Bribery, 1835); 90
Journals of the House of Commons 564,
571, 575 (Case of Lieutenant Colonel Fairman before Select
Committee on the Orange Lodges, 1835); 152
Journals of the
House of Commons 661, 365 (Case of John Kirkwood before Select
Committee on Money Lending, 1897).
For Canadian practice,
see the case of W. T. R. Preston
before the Committee on Public Accounts, the Committee on
Agriculture and Colonization, and the House of Commons. 41
Journals of the House of Commons, Canada, 298, 316, 323;
41
id., Appendix No. 2, 324-327; 41
id., Appendix
No. 3, 250-251; 76
Debates, House of Commons, Canada,
Session 1906, Vol. III, 4451-4535.
[
Footnote 37]
See Hoffman v. United States, 341 U.
S. 479,
341 U. S.
486:
"It is for the court to say whether his silence is justified . .
. and to require him to answer if 'it clearly appears to the court
that he is mistaken.'"
See also Chief Justice Marshall in
United States v.
Burr, 25 Fed.Cas. 38, at 40, No. 14,692e:
"When a question is propounded, it belongs to the court to
consider and to decide whether any direct answer to it can
implicate the witness."
The cases, both federal and state, are collected in Wigmore,
Evidence, § 2271.
See, e.g., Carlson v. United States, 209
F.2d 209, 214, and
Gendron v. Burnham, 146 Me. 387,
405-406,
82 A.2d
773, 784-785.
[
Footnote 38]
See, e.g., the resolution introduced by Congressman Orr
proposing that one J. W. Simonton be haled before the bar of the
House of Representatives for refusing to answer a question put to
him by a duly authorized committee of that body. Cong.Globe, 34th
Cong., 3d Sess. 403-404 (1857). The resolution states in part:
"The committee were impressed with the materiality of the
testimony withheld by the witness, as it embraced the letter and
spirit of the inquiry directed by the House to be made, but were
anxious to avoid any controversy with the witness. They
consequently waived the interrogatory that day, to give the witness
time for reflection on the consequences of his refusal, and to
afford him an opportunity to look into the law and the practice of
the House in such cases, notifying him that he would, on some
subsequent day, be recalled. This was the 15th of January instant.
On Tuesday, the 20th instant, the said J. W. Simonton was recalled,
and the identical question first referred to was again propounded,
after due notice to him that, if he declined, the committee would
feel constrained to report his declination to the House and ask
that body to enforce all its powers in the premises to compel a
full and complete response."
Id. at 403.
See also id., 31st Cong., 1st
Sess. 1716 (1850).
[
Footnote 39]
Act of Jan. 24, 1857, c. 19, § 1, 11 Stat. 155.
[
Footnote 40]
Cong.Globe, 34th Cong., 3d Sess. 427.
[
Footnote 41]
Anderson v.
Dunn, 6 Wheat. 204,
19 U. S.
230-231.
[
Footnote 42]
[
Footnote 43]
[
Footnote 44]
See, e.g., the contempt citation of George Powers at 86
Cong.Rec. 3856-3857.
See also the citation of James H.
Dolsen,
id. at 3694-3695.
[
Footnote 45]
See contempt citation of Saul Grossman, 98 Cong.Rec.
8634-8637.
MR. JUSTICE HARLAN, concurring.
I agree with the result reached by the Court in this case. But I
must dissent from the holding made in
349 U.
S. The reasons for my position are stated in Part II of
my dissenting opinion in the
Emspak case, decided
herewith,
post, p.
349 U. S. 203,
at p.
349 U. S. 213.
I consider those reasons equally applicable to what is shown by the
record in this case.
MR. JUSTICE REED, dissenting.
*
The Court in these two cases refuses to punish petitioners,
witnesses before the Committee on Un-American Activities of the
House of Representatives, for refusal to answer certain pertinent
questions. Such refusal is declared to be a misdemeanor by 2 U.S.C.
§ 192.
The separate opinions are based on the conclusion that the
petitioners each properly claimed for himself the privilege against
self-incrimination guaranteed by the Fifth Amendment. The Court
holds that questions concerning association with known communists
or membership in the Party asked witnesses holding prominent
positions in a local union, under investigation for communist
infiltration directed at national security, might reasonably be
feared as incriminatory by the witnesses. [
Footnote 2/1] For these cases, I make that assumption,
too. In both the cases, the Court directs remand to the trial court
with directions to acquit. This disposition of the charges excludes
any factual issues for decision by the trial court as to whether
the witnesses did or did not claim their
Page 349 U. S. 172
privilege. It decides that, as a matter of law, the petitioners
claimed their privilege by the words used by them in answer to the
questions propounded by the Committee. Since the indictments
contained numerous counts covering many questions asked and the
evidence showed varying reasons for not answering, the conclusion
that privilege was claimed blankets all questions. Since the
sentences were less than the maximum penalty for one count, if the
Court's determination is wrong as to any one question, its present
judgments are wrong. [
Footnote 2/2]
Normally the issue as to whether a claim of privilege was made
would be a matter of fact for the trial court if reasonable men
might reach either conclusion.
See the discussion below in
the opinion of Judge Prettyman in
Quinn v. United States,
91 U.S.App.D.C. 344, 203 F.2d 20, 24, and of Judge Bazelon at 26
and 38. None of the judges of the Court of Appeals suggested
approval of such action as this Court now takes in directing
acquittal.
See also Emspak v. United States, 91
U.S.App.D.C. 378, 203 F.2d 54, dissent 60. This Court at least
should have followed that course here.
These sweeping decisions affect the conduct of all congressional
inquiries and all courts, for from the opinions there emerges a
legally enforceable rule for handling hearings or prosecutions when
questions raise for the witness a problem of self-incrimination.
The Court,
Quinn opinion, p.
349 U. S. 164,
requires the interrogator, once the witness' claim, though "vague .
. . , is sufficiently definite to apprise the committee of his
intention," to claim his privilege, "either to accept the claim or
to ask petitioner whether he was in fact invoking the privilege."
Although this phrasing, particularly the last clause, carries for
me probabilities of uncertainties in future applications that
former decisions
Page 349 U. S. 173
avoided, [
Footnote 2/3] it is
accepted for this case as the governing rule. My conclusion is that
neither petitioner here apprised the Committee that he was claiming
his privilege. As shown by the cases just cited, the privilege is
personal to the witness. The reach of questions into matters that
might lead to his prosecution for crime may be known only to him.
Therefore, the witness has the burden of doing something more than
suggesting a question might incriminate him. At least, in the words
of the Court, he must "apprise the committee of his intention" to
claim his privilege.
The purpose of having witnesses is to furnish to proper
interrogators, subject to objections for materiality or the use of
coercion, the actual facts they seek. Legislation can best be
drafted and cases tried most fairly only when all pertinent facts
are made available to those charged with legislation or maintenance
of the peace. However, the Congress, in the first series of
Amendments to the Constitution, wrote an exception to this duty in
the instance where an answer would compel a person to be a witness
against himself in a criminal case. In that situation, on a valid
claim of privilege against self-incrimination, the witness may be
excused from answering. [
Footnote
2/4] That exception should neither be shriveled nor bloated. It
is designed to excuse the guilty and the innocent alike from
testifying when prosecution may reasonably be feared from compelled
disclosures. The importance of preserving the right to require
evidence, except when a witness definitely apprises the
interrogating body of a valid claim of privilege, leads us to
dissent.
Page 349 U. S. 174
I
. CLAIM OF PRIVILEGE
The Court finds from the record before the Committee an apprisal
by petitioners which the Committee should have understood as a
claim of privilege against self-incrimination. In examining the
record for this purpose, all the pertinent testimony must be
considered and evaluated in the light of the purpose and abilities
of the petitioners.
During an active period of national rearmament, this Committee
was investigating subversive and security situations in the
sensitive electronic industry with a view to possible legislation.
[
Footnote 2/5] The recalcitrant
witnesses held important positions in the field. Mr. Quinn was a
field organizer of the International Union of the United
Electrical, Radio, and Machine Workers. Mr. Emspak was its General
Secretary. The third witness, who is not a petitioner but whose
testimony is hereafter referred to, was Mr. Fitzpatrick, chief
steward of the Westinghouse Corporation local. There is nothing to
indicate that the witnesses had mentalities of a quality less than
one would expect from experienced officials holding such
responsible positions.
It will be observed from their testimony, however, that, in
avoiding direct answers to specific questions, each one engaged in
exercises in dialectics that always fell short of advising the
Committee of any intention to claim his privilege. In view of the
ease with which a claim can be made by any layman, the availability
of personal lawyers for these witnesses, and the careful avoidance
of any such statement as, "I decline to answer on the ground of
possible self-incrimination," I cannot hold that these
Page 349 U. S. 175
witnesses evidenced by their testimony an intention to claim
privilege. The fact that a claim of privilege would subject the
witnesses to criticism in some quarters, of course, has no bearing
upon the necessity to assert one's rights. This is emphasized by
the fact that, long ago, this Court declared that no moral
turpitude is involved in refusing to answer under the protection of
the privilege. [
Footnote 2/6]
While the trial and appellate courts each had only a printed
record of the testimony, one group, the subcommittees themselves,
had the best opportunity to appraise disinterestedly the fact of
whether Messrs. Quinn and Emspak claimed the privilege. The
questions and answers were both asked by the counsel and answered
by the witnesses in the hearing of the Committee. In citations of
Quinn and Emspak to the House for contempt, the Committee certified
that the refusal of each "to answer the aforesaid questions
deprived your committee of necessary and pertinent testimony. . .
." [
Footnote 2/7] It can hardly be
contended that the Committee did not know a claim of privilege
against answering incriminating questions would have excused the
witnesses from answering.
In view of the basis of the Court's decision made on its own
examination and appraisal of the record, we must necessarily set
out for discussion much of the testimony to determine whether the
witnesses claimed the privilege. [
Footnote 2/8] The pertinent evidence follows.
After testifying at some length, the petitioner was asked: "Mr.
Emspak, are you acquainted with Joseph
Page 349 U. S. 176
Persily?" Petitioner did not answer the question, but made the
following statement:
"Mr. Emspak. Mr. Chairman, I would like to say something at this
point."
"Mr. Moulder. You mean in response to the question?"
"Mr. Emspak. I will answer the question; yes, in response to the
question and as a statement of position."
"What I say revolves around two points, one organizationally and
another as an individual. Organizationally, my job as an officer of
this union is to represent the interest of the membership as they
determine it at the annual conventions and at other means they have
of getting together and expressing themselves. My job is to
administer that aspect to the best of my ability, using one very
simple measuring stick, and that is: does a given policy or action
contribute to the wellbeing of the membership, individually and
collectively?"
"As an individual, I would like to say one thing, and that is
this: the line of questioning that counsel is developing now is a
line that has been used on numerous occasions by this committee and
other congressional committees in an attempt to harass the union,
its leadership, and its members. It is a line of questioning that
goes against my grain as an American. I was born in this country.
Everything I am --"
"Mr. Moulder. How long will this statement take, Mr.
Emspak?"
"Mr. Emspak. About two or three more minutes."
"Mr. Moulder. Proceed."
"Mr. Emspak. Everything I am, I owe to the rich heritage and
tradition of this country. I do not
Page 349 U. S. 177
believe that a committee of this kind, especially in view of the
recent record of this committee where it stooped to interfere in
the partisan affairs of a local union, or any congressional
committee, because of the rich tradition of this country which, if
not perverted, will lead to a greater and better country -- I don't
think a committee like this or any subcommittee has a right to go
into any question of my beliefs, my associations, or anything else.
I have a couple of kids. They have a stake in this country,
too."
"Mr. Moulder. I want to give you full opportunity to express
yourself in answer to the question, but you are making an oration
now."
"Mr. Emspak. It is not an oration. It happens to be a very
profound personal feeling."
"Mr. Moulder. What is the question?"
"Mr. Tavenner. The question is: are you acquainted with Joseph
Persily."
"Mr. Moulder. How do you spell that?"
"Mr. Tavenner. P-e-r-s-i-l-y."
"Mr. Emspak. Because I have a stake in this country --"
"Mr. Moulder. You are not answering the question. He asked you
if you are acquainted with this man."
"Mr. Emspak. I will answer it."
"Mr. Moulder. Are you or not?"
"Mr. Emspak. I was on the verge of answering it."
"Mr. Moulder. If you have any explanation to make, you will be
permitted to do so after you answer the question."
"Mr. Emspak. Because of my interest in what is going on these
days, because of the activities of this committee --"
"Mr. Moulder. Are you going to answer the question? "
Page 349 U. S. 178
"Mr. Emspak. Because of the hysteria, I think it is my duty to
endeavor to protect the rights guaranteed under the Constitution,
primarily the First Amendment, supplemented by the Fifth. This
committee will corrupt those rights."
"Mr. Moulder. Do you think it corrupts you to answer the
question?"
"Mr. Emspak. I certainly do."
"Mr. Moulder. Why does it corrupt you?"
"Mr. Emspak. Your activities are designed to harm the working
people of this country. Every action this committee has ever taken
has done that. You interfered last summer in the election of a
local union at the request of a priest. You know that. You dragged
down the prestige of this country."
"Mr. Moulder. You are not going to take over this
committee."
"Mr. Emspak. I don't want to."
"Mr. Moulder. And your statements are preposterous. The purpose
of this committee is to expose communism as it exists in this
country. What is the question?"
"Mr. Tavenner. Are you acquainted with Joseph Persily?"
"Mr. Emspak. For the reasons I stated before, I answered
it."
"Mr. Moulder. Then you refuse to answer the question?"
"Mr. Emspak. No. I answered it."
"Mr. Tavenner. Are you or are you not acquainted with Joseph
Persily?"
"Mr. Emspak. I answered the question."
"Mr. Tavenner. Your replies are a refusal to comply with the
request to answer it?"
"(Witness confers with his counsel.) "
Page 349 U. S. 179
"Mr. Moulder. The record will reveal that you have not answered
the question."
"Mr. Emspak. I have answered it to the best of my ability under
the circumstances."
In answer to subsequent questions, the petitioner simply
referred to his prior answer. Later on, the following statements
were made:
"Mr. Emspak. Mr. Chairman, on these questions, which are all
essentially the same, of course, when this hearing was announced,
according to the press reports, at least, it was announced because
this committee presumably was interested in finding out things with
reference to individuals in our organization by using whatever
means it has at its disposal, and for the purpose of trying to
perhaps frame people for possible criminal prosecution."
"I don't see how or why any individual should be subjected to
that kind of questioning here if he is going to maintain, you know,
his feelings on these questions, and I tried to express the feeling
before when you interrupted me. I just don't intend, as I said
then, to be a party to any kangaroo court proceedings of this
committee or any other congressional committee. I think I have the
right to reserve whatever rights I have in that respect to whatever
appropriate bodies may be set up to deal with questions that come
up."
"Mr. Moulder. Do you mean to say you have people in your
organization who have information that would subject you to
criminal prosecution?"
"Mr. Emspak. No; I don't, Mr. Chairman. As a basic proposition
-- and it has worked over the years and over the last few months as
far as this committee is concerned -- a slick job -- "
Page 349 U. S. 180
"Mr. Moulder. Do you know them, or not?"
"Mr. Emspak. That does not concern this committee at all."
"Mr. Moulder. Is it your feeling that to reveal your knowledge
of them would subject you to criminal prosecution?"
"Mr. Emspak. No. I don't think this committee has a right to pry
into my associations. That is my own position."
No more of the record is printed, as the excerpt shows the
exchange between the Committee and petitioner upon which Count I of
the indictment and the constitutional issues arising thereunder are
based. This related to his acquaintanceship with Joseph Persily, a
man who had been listed, according to a stipulation, as a person
named as an official "of the UERMWA with Communist or Communist
Front Affiliations." Nothing more favorable to petitioner's
position appears on the questions examined or any other
question.
As the
Emspak case offers for me a clear example of
failure to claim his privilege, I think it better not to encumber
this opinion unnecessarily with quotations from the
Quinn
case.
In the
Quinn case, the witness adopted in its entirety
the testimony of a former witness, Mr. Thomas J. Fitzpatrick, chief
steward of Local No. 601, United Electrical, Radio and Machine
Workers of America. Mr. Quinn's testimony establishing his reliance
on Mr. Fitzpatrick's evidence will be found in this Court's opinion
in the
Quinn case,
supra, note 8 ante, p. 158. The hearing opened with a
declaration by Mr. Fitzpatrick of minority rights to secrecy as
follows:
"The Constitution of this country provides certain protection
for minorities and gives the privilege for people to speak and
think as they feel that they
Page 349 U. S. 181
should and want to. It also gives the privilege that people can
have opinions or beliefs that may be unpopular. In my opinion, it
gives them the right to hold those opinions secret if they so
desire. This is a protection of the First Amendment to the
Constitution, supplemented by the Fifth Amendment."
"Mr. Wood. What is?"
"Mr. Fitzpatrick. The right of the people guaranteed by the
Constitution."
This certainly indicated no claim of the privilege against
self-incrimination. Mr. Fitzpatrick was then asked: "Are you now or
have you ever been a member of the Communist Party?" After fencing
with the Committee about prying into his mind, he said:
"Mr. Fitzpatrick. I will answer the question. The Constitution
guarantees the right to me and every other citizen to have beliefs,
whether they are popular or unpopular, and to keep them to
themselves if they see fit, and I have no intention of being a
party to weakening or destroying that protection in the
Constitution. I feel when I take this position that I am one of the
real Americans, and not like some of the phonies who appear
here."
Later on, he was asked whether he had asked a Mr. Copeland to
sign an application for membership in a Communist organization. In
answer to that question, this occurred.
"Mr. Fitzpatrick. Mr. Chairman, do I have to give you my answer
again?"
"Mr. Wood. I just want to know whether you did that one
thing."
"Mr. Fitzpatrick. I say if I did or if I did not, regardless of
what I did, it is not the affair of this committee to pry into this
kind of action. "
Page 349 U. S. 182
"Mr. Wood. And, for that reason, do you decline to answer the
question?"
"Mr. Fitzpatrick. I stand on the protection of the Constitution,
the First and Fifth Amendments."
"Mr. Wood. And, for those reasons, decline to answer the
question further?"
"Mr. Fitzpatrick. I have answered the question."
"Mr. Wood. I say, do you decline to answer it further?"
"Mr. Fitzpatrick. I have no further comment on it."
The two references to the First and Fifth Amendments are the
only phrases in the whole examination that could be thought to
refer to a claim of immunity against self-incrimination.
From these vague statements of Messrs. Quinn and Emspak, the
Court draws the conclusion that they were sufficient to apprise the
Committee of the witnesses' intention to claim the privilege
against self-incrimination. The Court finds support for its theory
of "intention" to claim privilege from a statement in the
Government's brief in the
Quinn case set out below.
[
Footnote 2/9] With all
respect,
Page 349 U. S. 183
I fail to see any concession by the Government of evidence that
should apprise the Committee of a claim of privilege against
self-incrimination. The first sentence of the quotation from the
brief emphatically denies the Court's assumption.
What the records show to me is a calculated effort by Messrs.
Quinn, Emspak and Fitzpatrick to hinder and delay a congressional
committee in its effort to bring out facts in order to determine
whether or not to undertake legislation. Such quibbling evades the
basis for an understanding of the attitude of the witness as to
privilege. It does not apprise the Committee of the claim of
privilege, and should not be held permissible. Factual testimony is
the means for the ascertainment of truth in legally organized
inquiries. Silence brings the proceedings to a dead end. The burden
is on the witness to advise his interrogators of a claim to
privilege in understandable terms. [
Footnote 2/10] In the context of this testimony, the
adoption by Mr. Quinn of Mr. Fitzpatrick's reference to the First
and Fifth Amendments smacks strongly of a "due process" Fifth
Amendment claim. Mr. Fitzpatrick had been speaking of his right of
privacy, speech and association, not of the privilege against
self-incrimination. He then added:
"Mr. Chairman, if you want to ask me questions about my actions
of loyalty, question my loyalty, you have a right to do so, and I
will answer them. So far as my political opinions, I have stated my
position on that. You are asking the same question in a different
way. But, if my memory is right, there was no such thing as a
Communist Party when that affidavit is supposed to have been. "
Page 349 U. S. 184
The same attitude shows through Mr. Emspak's testimony. In
addition, there was a direct refusal by Mr. Emspak to claim
privilege.
See pp.
349 U. S.
179-180,
supra.
The Court suggests that this should not be construed as a waiver
of the claim, and cites
Smith v. United States,
337 U. S. 137,
337 U. S. 151.
I do not think the
Smith case apposite. In that case,
there had been a clear claim of privilege for immunity. We held
that required a definite, unambiguous waiver. Here, there was, in
my view, no claim of privilege.
The opinion of the trial court, printed only in the record, pp.
224-227, holds "The defendant failed to assert [the privilege]."
Six of the nine members of the Court of Appeals held that
Emspak had not claimed. Three did not reach that
issue.
I concur with the Court in its assertions of the value of the
self-incrimination clause -- that it may be used as a shield by
guilty and innocent alike -- and that it should be construed
liberally, as it has been, to cover more than the literal reading
of the phrase "No person . . . shall be compelled in any criminal
case to be a witness against himself" would suggest. [
Footnote 2/11] This sympathetic attitude
toward the clause should not lead us to intrude our ideas of
propriety into the conduct of congressional hearings.
Page 349 U. S. 185
The rule laid down by the Court today merely adds another means
for interference and delay in investigations and trials, without
adding to the protection of the constitutional right of freedom
from self-incrimination. This is contrary to the policy of Congress
to get information from witnesses even with a claim of immunity,
through the Compulsory Testimony Act of August 20, 1954, 68 Stat.
745 and note preceding § 3481.
II
. DIRECTION TO ANSWER
The Court advances a second ground in the
Quinn and
Emspak cases for its direction that the District Court
enter a judgment of acquittal. This is that a deliberate intent to
refuse to answer the Committee's questions is required for the
judgment of contempt. The Court explains,
Quinn case, p.
349 U. S. 166,
that intent may be implied only when the witness is "clearly
apprised that the Committee demands his answer notwithstanding his
objections," and,
Emspak case, p.
349 U. S. 202,
"without such apprisal, there is lacking the element of
deliberateness necessary for a conviction under § 192 for a refusal
to answer." The Court concludes that the witness was not
"specifically" directed to answer, or otherwise informed as to the
disposition of his objections.
The Court must admit, as it does,
Quinn opinion, p.
349 U. S. 162,
that no particular form of words is required. On the other hand, I
must admit that a witness must be clearly apprised that his claim
of the freedom from an obligation to answer is not accepted by the
interrogator. [
Footnote 2/12] I
agree that the offense punishable under the statute is a
deliberate, intentional refusal -- not an inadvertence, accident
or
Page 349 U. S. 186
misunderstanding. [
Footnote
2/13] Good faith in refusing to answer, however, is no defense
so long as the refusal is intentional, deliberate.
Sinclair v.
United States, 279 U. S. 263,
279 U. S. 299,
points out that:
"The gist of the offense is refusal to answer pertinent
questions. . . . Intentional violation is sufficient to constitute
guilt."
United States v. Murdock, 284 U.
S. 141, involved a statute very similar to the one here
involved. In that case, Murdock had been called to testify before
an Internal Revenue Agent, and refused to answer certain questions
on the ground that he might be incriminated under state law. We
said in that case:
"While undoubtedly the right of a witness to refuse to answer
lest he incriminate himself may be tested in proceedings to compel
answer, there is no support for the contention that there must be
such a determination of that question before prosecution for the
willful failure so denounced. By the very terms of the definition,
the offense is complete at the time of such failure."
284 U.S. at
284 U. S.
148.
There was no direction to answer in either case. While the point
was not raised, their holding as to what establishes the offense
does not include a specific direction to answer as one of the
elements.
While the Court held in
Sinclair that deliberate
refusal was all that was required to consummate the offense under 2
U.S.C. § 192, at the same time we were at pains to point out "There
was no misapprehension" on the part of the witness "as to what was
called for." 279 U.S. at
279 U. S. 299.
It is because the refusal must be intentional that the witness
Page 349 U. S. 187
must know that his excuses for not answering have not been
accepted by the Committee. When a witness interposes objections to
testifying which are not frivolous, it is difficult to say he
intentionally refused to answer when the interrogation continues
without pause to some other question. I agree that the Committee
cannot, in fairness to the witness, lull him into thinking that his
refusal to answer is acceptable and then cite him for contempt.
Refusal under such circumstances would not be deliberate. However,
specific direction to answer is not necessary; only intentional
refusal is.
The Court suggests,
note
36 Quinn case, that congressional committees follow
the practice of other legislative bodies and determine first the
validity of the witness' reason for failure to answer and then
direct him to answer. The defect in that analogy is that the Court
seems to assume in its note a formal vote and a specific direction
to answer. I think such a specific direction is inconsistent with
its page
349 U. S. 170
admission that no ritualistic formula is required. No provision of
the statute, nor of any rule of Congress, is cited by the Court to
support a requirement of specific direction. The Court of Appeals
held direction to answer unnecessary so long as the witness knew
that the Committee had not acceded to his refusal. [
Footnote 2/14] As I stated above, in my
view, it is sufficient if the witness knows his excuses are not
acceptable to the Committee and that he is required to answer.
Whether or not the witnesses knew this in these two cases is the
question on this second point.
The Court holds that the witnesses did plead the privilege, and
were not advised that the Committee refused to accept their pleas.
I disagree. After Mr. Quinn had adopted Mr. Fitzpatrick's words as
his own method of
Page 349 U. S. 188
refusing to answer the question as heretofore discussed, it will
be seen that Mr. Wood, a Committee member, said to Mr. Quinn:
"Mr. Wood. You have stated your position. Having enunciated your
sentiments and your position, will you now answer the question
whether you are now or ever have been a member of the Communist
Party, or do you decline to answer?"
"Mr. Quinn. I decline to discuss with the committee questions of
that nature."
This, I think advised Mr. Quinn that the Committee refused to
accept his reply as a satisfactory excuse, and required him to
proceed.
I think, too, that Mr. Emspak was advised his answer was not
accepted, and that he was required to proceed. When he was asked
repeatedly as to whether he was acquainted with Joseph Persily, he
said again:
"Mr. Emspak. For the reasons I stated before, I answered
it."
"Mr. Moulder. Then you refuse to answer the question?"
"Mr. Emspak. No. I answered it."
"Mr. Tavenner. Are you or are you not acquainted with Joseph
Persily?"
"Mr. Emspak. I answered the question."
"Mr. Tavenner. Your replies are a refusal to comply with the
request to answer it?"
"(Witness confers with his counsel.)"
"Mr. Moulder. The record will reveal that you have not answered
the question."
"Mr. Emspak. I have answered it to the best of my ability under
the circumstances."
On continued questioning as to Mr. Persily, he continued, "I
will give the same answer." I cannot but conclude, as did the lower
courts, that the witness Emspak was adequately
Page 349 U. S. 189
informed that his objections were refused and that he must
answer.
The Court directs acquittal of both petitioners on the grounds
of claim of privilege and failure to specifically overrule their
objections or direct them to answer. I disagree with both grounds.
Confining expression of my views to those issues, I dissent.
MR. JUSTICE MINTON joins in so much of this opinion as applies
to
Emspak v. United States.
* [This dissenting opinion applies also to
Emspak v. United
States, post, p.
349 U. S.
190.]
[
Footnote 2/1]
Blau v. United States, 340 U.
S. 159;
Emspak v. United States, post, p.
349 U. S. 190, at
p.
349 U. S. 199;
see the Court's opinion in
Quinn v. United States,
supra, at p.
349 U. S.
162.
[
Footnote 2/2]
Sinclair v. United States, 279 U.
S. 263,
279 U. S.
299(7).
[
Footnote 2/3]
United States ex rel. Vajtauer v. Commissioner,
273 U. S. 103,
273 U. S. 113;
United States v. Monia, 317 U. S. 424,
317 U. S. 427,
dissent
317 U. S. 439;
Rogers v. United States, 340 U. S. 367,
340 U. S. 371;
cf. Adams v. Maryland, 347 U. S. 179.
[
Footnote 2/4]
See McCarthy v. Arndstein, 266 U. S.
34;
Counselman v. Hitchcock, 142 U.
S. 547.
[
Footnote 2/5]
Hearings before House Committee on Un-American Activities
Regarding Communist Infiltration of Labor Unions, Part 1, 81st
Cong., 1st Sess. 541.
[
Footnote 2/6]
Sinclair v. United States, 279 U.
S. 263,
279 U. S.
299.
[
Footnote 2/7]
Proceedings against Julius Emspak, H.R.Rep.No.2847, 81st Cong.,
2d Sess., p. 10; same against Thomas Quinn, H.R.Rep.No.2857, p.
3.
[
Footnote 2/8]
Any person who desires to see the complete essential testimony
may consult the Proceedings, cited in the preceding note.
See
also H.R.Rep.No.2856.
[
Footnote 2/9]
"Under these circumstances, we contend that petitioner did not
adequately inform the Committee that he was claiming the protection
of the privilege."
"Moreover, we feel bound to point out the probability that
petitioner's ambiguous references to the Fifth Amendment (and those
of the petitioner
Emspak in No. 9), which he now contends
constituted a claim of privilege, were phrased deliberately in such
vague terms so as to enable petitioner (and Emspak) to obtain the
benefit of the privilege without incurring the popular opprobrium
which often attaches to its exercise. This suggestion is not based
merely upon the obvious fact that it would have been extremely easy
for petitioner to have informed the Committee that answers to its
questions might incriminate or endanger him. It is also based upon
facts of record, and matters appropriate for judicial notice, which
reveal that petitioner (and Fitzpatrick and Emspak) had compelling
and immediate reasons to refrain from making any public statements
from which it might be inferred, properly or not, that they were
Communists or Communist sympathizers."
Govt. br., 33-34.
[
Footnote 2/10]
See 349
U.S. 155fn2/3|>note 3,
supra.
[
Footnote 2/11]
See, for example, Counselman v. Hitchcock, 142 U.
S. 547,
142 U. S. 562;
Blau v. United States (two cases),
340 U.
S. 159 and
340 U. S. 340 U.S.
332 (privilege available at grand jury proceedings);
McCarthy
v. Arndstein, 266 U. S. 34,
266 U. S.
40,
"The privilege is not ordinarily dependent upon the nature of
the proceeding in which the testimony is sought or is to be used.
It applies alike to civil and criminal proceedings, wherever the
answer might tend to subject to criminal responsibility him who
gives it. The privilege protects a mere witness as fully as it does
one who is also a party defendant"
(proceedings in bankruptcy);
Brown v. Walker,
161 U. S. 591,
and see also Graham v. United States, 99 F.2d 746
(administrative proceedings);
see also Wood v. United
States, 75 U.S.App.D.C. 274, 128 F.2d 265 (preliminary
hearings).
[
Footnote 2/12]
Fields v. United States, 82 U.S.App.D.C. 354, 164 F.2d
97, 100;
Bart v. United States, 91 U.S.App.D.C. 370, 203
F.2d 45, 48;
Emspak v. United States, 91 U.S.App.D.C. 378,
203 F.2d 54, 56.
[
Footnote 2/13]
Townsend v. United States, 68 App.D.C. 223, 229, 95
F.2d 352, 358;
Fields v. United States, 82 U.S.App.D.C.
354, 357, 164 F.2d 97, 100.
[
Footnote 2/14]
The instant case and the
Emspak and
Bart cases
all deal at length with his question.
Emspak v. United
States, 91 U.S.App.D.C. 378, 203 F.2d 54, 56;
Bart v.
United States, 91 U.S.App.D.C. 370, 203 F.2d 45, 50.
See
also comments, 40 Geo.L.J. 137; 41 Geo.L.J. 433.