After a fire occurred on premises of a corporation owned and
operated by appellants in Ohio, the State Fire Marshal subpoenaed
appellants to appear as witnesses in an investigation by him of the
cause of the fire. Relying on Page's Ohio Rev.Code, 1954, §
3737.13, which provides that such an investigation "may be private"
and that the Marshal may "exclude from the place" where the
investigation is held "all persons other than those required to be
present," he refused to permit appellants' counsel to be present at
the proceeding. Appellants declined to be sworn and to testify in
the absence of their counsel. This was treated as a violation of §
3737.12, which forbids any witness to refuse to be sworn or to
refuse to testify, and, pursuant to § 3737.99(A), the Marshal
committed appellants to jail until such time as they should be
willing to testify. Denial of their application for a writ of
habeas corpus was affirmed by the State Supreme Court.
Held:
1. Under 28 U.S.C. § 1257(2), this Court has jurisdiction of
this appeal. Pp.
352 U. S.
331-332.
2. Appellants had no constitutional right to be assisted by
counsel in giving testimony at the investigatory proceeding
conducted by the Fire Marshal, and, insofar as it authorizes the
exclusion of counsel while a witness testifies, § 3737.13 is not
repugnant to the Due Process Clause of the Fourteenth Amendment.
Pp.
352 U. S.
332-335.
164 Ohio St. 26, 128 N.E.2d 106, affirmed.
MR. JUSTICE REED delivered the opinion of the Court.
The question presented by this appeal is whether appellants had
a constitutional right under the Due Process Clause of the
Fourteenth Amendment to the
Page 352 U. S. 331
assistance of their own counsel in giving testimony as witnesses
at a proceeding conducted by the Ohio State Fire Marshal to
investigate the causes of a fire.
After a fire occurred on the premises of a corporation owned and
operated by appellants, the Fire Marshal started an investigation
into the causes of the fire, and subpoenaed appellants to appear as
witnesses. The Fire Marshal refused to permit appellants' counsel
to be present at the proceeding, relying on § 3737.13 of the Ohio
Code, which provides that the "investigation . . . may be private"
and that he may "exclude from the place where [the] investigation
is held all persons other than those required to be present. . . ."
[
Footnote 1] Appellants
declined to be sworn and to testify without the immediate presence
of their counsel, who had accompanied them to the hearing. Their
refusal was treated as a violation of § 3737.12, which provides
that "No witness shall refuse to be sworn or refuse to testify. . .
." Section 3737.99(A) provides that
"Whoever violates section 3737.12 . . . may be summarily
punished, by the officer concerned, by . . . commitment to the
county jail until such person is willing to comply with the order
of such officer."
The Fire Marshal accordingly committed appellants to the county
jail until such time as they should be willing to testify.
[
Footnote 2] Appellants'
application for a writ of habeas corpus was denied by the Ohio
Court of Common Pleas, and this denial was affirmed on appeal by
the Ohio Court of Appeals and by the Ohio Supreme Court. [
Footnote 3]
We postponed further consideration of the question of
jurisdiction to the hearing on the merits. 351 U.S. 903. The Ohio
Supreme Court construed § 3737.13 to
Page 352 U. S. 332
authorize the Fire Marshal to exclude appellants' counsel from
the proceeding. Since appellants' attack is on the
constitutionality of that section, we have jurisdiction on appeal.
28 U.S.C. § 1257(2).
We note at the outset that appellants explicitly disavow making
any direct attack on the Fire Marshal's power of summary punishment
under § 3737.99(A). They challenge not the validity of the
procedure by which they were committed to jail, but the
constitutional sufficiency of the grounds on which they were so
committed. Their sole assertion is that the Fire Marshal's
authority to exclude counsel under § 3737.13 was unconstitutional
because they had a right, under the Due Process Clause, to the
assistance of their counsel in giving their testimony.
It is clear that a defendant in a state criminal trial has an
unqualified right, under the Due Process Clause, to be heard
through his own counsel.
Chandler v. Fretag, 348 U. S.
3. Prosecution of an individual differs widely from
administrative investigation of incidents damaging to the economy
or dangerous to the public. The proceeding before the Fire Marshal
was not a criminal trial, nor was it an administrative proceeding
that would in any way adjudicate appellants' responsibilities for
the fire. It was a proceeding solely to elicit facts relating to
the causes and circumstances of the fire. The Fire Marshal's duty
was to "determine whether the fire was the result of carelessness
or design," and to arrest any person against whom there was
sufficient evidence on which to base a charge of arson. [
Footnote 4]
The fact that appellants were under a legal duty to speak and
that their testimony might provide a basis for criminal charges
against them does not mean that they had a constitutional right to
the assistance of their counsel. Appellants here are witnesses from
whom information
Page 352 U. S. 333
was sought as to the cause of the fire. A witness before a grand
jury cannot insist, as a matter of constitutional right, on being
represented by his counsel, [
Footnote 5] nor can a witness before other investigatory
bodies. [
Footnote 6] There is
no more reason to allow the presence of counsel before a Fire
Marshal trying in the public interest to determine the cause of a
fire. Obviously in these situations evidence obtained may possibly
lay a witness open to criminal charges. When such charges are made
in a criminal proceeding, he then may demand the presence of his
counsel for his defense. Until then, his protection is the
privilege against self-incrimination. [
Footnote 7] U.S.Const., Amend. V.; Ohio Const., Art. I, §
10.
See Adamson v. California, 332 U. S.
46,
332 U. S. 52.
This is a privilege available in investigations, as well as in
prosecutions.
See In re Groban, 164 Ohio St. 26, 28, 128
N.E.2d 106, 108, and 99 Ohio App. 512, 515, 135 N.E.2d 477, 480;
McCarthy v. Arndstein, 266 U. S. 34,
266 U. S. 40;
Adams v. Maryland, 347 U. S. 179. We
have no doubt that the privilege is available in Ohio against
prosecutions, as well as convictions reasonably feared.
Cf.
Ullmann v. United States, 350 U. S. 422,
350 U. S. 431.
The mere fact that suspicion may be entertained of such a witness,
as appellants believed existed here, though without allegation of
facts to support such a belief, does not bar the taking of
testimony in a private investigatory proceeding.
It may be that the number of people present in a grand jury
proceeding gives greater assurance that improper
Page 352 U. S. 334
use will not be made of the witness' presence. We think,
however, that the presumption of fair and orderly conduct by the
state officials without coercion or distortion exists until
challenged by facts to the contrary. Possibility of improper
exercise of opportunity to examine is not, in our judgment, a sound
reason to set aside a State's procedure for fire prevention. As in
similar situations, abuses may be corrected as they arise, for
example, by excluding from subsequent prosecutions evidence
improperly obtained.
Ohio, like many other States, maintains a division of the state
government directed by the Fire Marshal for the prevention of fires
and reduction of fire losses. [
Footnote 8] Section 3737.13, which has been in effect
since 1900, [
Footnote 9]
represents a determination by the Ohio Legislature that
investigations conducted in private may be the most effective
method of bringing to light facts concerning the origins of fires,
and, in the long run, of reducing injuries and losses from fires
caused by negligence or by design. We cannot say that this
determination is unreasonable. The presence of advisors to
witnesses might easily so far encumber an investigatory proceeding
as to make it unworkable or unwieldy. And with so weighty a public
interest as fire prevention to protect, we cannot hold that the
balance has been set in such a way as to be contrary to
"fundamental principles of liberty and justice."
Hebert v.
Louisiana, 272 U. S. 312,
272 U. S. 316.
That is the test to measure the validity of a state statute under
the Due Process Clause.
Appellants urge, however, that the Fire Marshal's power to
exclude counsel under § 3737.13 must be considered in the light of
his power of summary punishment
Page 352 U. S. 335
under § 3737.99(A), and they would have us hold that, so
considered, his power to exclude counsel was unconstitutional. We
held in
In re Oliver, 333 U. S. 257,
that a witness before a one-man grand jury, a judge, could not
constitutionally be punished summarily for contempt of the grand
jury without being allowed to be represented by his counsel. We see
no relation between the premise that appellants could not be
punished without representation by counsel and the conclusion that
they could not be questioned without such representation. Section
3737.13 may contain a constitutional flaw if it should be construed
to authorize the exclusion of counsel while the Fire Marshal
determines that a witness has violated § 3737.12 and orders the
witness committed. The sole assertion of a constitutional violation
that appellants relied upon before the Ohio Supreme Court, and the
only one open on the record here -- the authorization in § 3737.13
of the exclusion of counsel while a witness testifies -- is not
well founded. We hold that appellants had no constitutional right
to be assisted by their counsel in giving testimony at the
investigatory proceeding conducted by the Fire Marshal, and that §
3737.13, insofar as it authorizes the exclusion of counsel while a
witness testifies, is not repugnant to the Due Process Clause of
the Fourteenth Amendment.
Affirmed.
[
Footnote 1]
Page's Ohio Rev.Code, § 3737.13.
[
Footnote 2]
Appellants were released on bond and have never in fact been
incarcerated.
[
Footnote 3]
In re Groban, 99 Ohio App. 512, 135 N.E.2d 477; 164
Ohio St. 26, 128 N.E.2d 106.
[
Footnote 4]
Page's Ohio Rev.Code, §§ 3737.08, 3737.10.
[
Footnote 5]
In re Black, 47 F.2d 542;
accord, United States v.
Blanton, 77 F. Supp.
812;
see United States v. Scully, 225 F.2d 113,
116.
[
Footnote 6]
Bowles v. Baer, 142 F.2d 787;
United States v.
Levine, 127 F.
Supp. 651. Note, Rights of Witnesses in Administrative
Investigations, 54 Harv.L.Rev. 1214, 1216-1217.
[
Footnote 7]
Cf. Ullmann v. United States, 350 U.
S. 422;
Hoffman v. United States, 341 U.
S. 479,
341 U. S. 486;
Smith v. United States, 337 U. S. 137,
337 U. S. 150;
Hale v. Henkel, 201 U. S. 43,
201 U. S.
66-67.
[
Footnote 8]
See National Fire Protection Association Handbook of
Fire Protection (10th ed. 1948) 41-45; Annual Report of the
Division of (Ohio) State Fire Marshal for 1955.
[
Footnote 9]
Ohio Laws 1900, Senate Bill No. 51.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins,
concurring.
To whatever extent history may confirm Lord Acton's dictum that
power tends to corrupt, such a doctrine of fear can hardly serve as
a test, under the Due Process Clause of the Fourteenth Amendment,
of a particular exercise of a State's legislative power. And so,
the constitutionality of a particular statute, expressive of a
State's view of desirable policy for dealing with one of
Page 352 U. S. 336
the rudimentary concerns of society -- the prevention of fires
and the ascertainment of their causes -- and directed towards a
particular situation, cannot be determined by deriving a troupe of
hobgoblins from the assumption that such a particularized exercise
of power would justify an unlimited, abusive exercise of power.
If the Ohio legislation were directed explicitly or by obvious
design toward secret inquisition of those suspected of arson, we
would have a wholly different situation from the one before us.
This is not a statute directed to the examination of suspects. It
is a statute authorizing inquiry by the chief guardian of a
community against the hazards of fire into the causes of fires. To
be sure, it does not preclude the possibility that a suspect might
turn up among those to be questioned by the Fire Marshal. But the
aim of the statute is the expeditious and expert ascertainment of
the causes of fire. The Fire Marshal is not a prosecutor, though he
may, like others, serve as a witness for the prosecution. In
various proceedings, as for instance under some workmen's
compensation laws, the presence of lawyers is deemed not conducive
to the economical and thorough ascertainment of the facts. The
utmost devotion to one's profession and the fullest recognition of
the great role of lawyers in the evolution of a free society cannot
lead one to erect as a constitutional principle that no
administrative inquiry can be had
in camera unless a
lawyer be allowed to attend.
The assumption that, as a normal matter, such an inquiry carries
with it deprivation of some rights of a citizen assumes inevitable
misuse of authority. For good reasons, and certainly for
constitutional purposes, the contrary assumption must be
entertained. The potential danger most feared is that it will
invade the privilege against self-incrimination in States where it
is constitutionally recognized. But that privilege is amply
safeguarded by the decision of the Supreme Court of Ohio in this
case.
Page 352 U. S. 337
We are not justified in invalidating this Ohio statute on the
assumption that people called before the Fire Marshal would not be
aware of their privilege not to respond to questions the answers to
which may tend to incriminate. At a time when this privilege has
attained the familiarity of the comic strips, the assumption of
ignorance about the privilege by witnesses called before the Fire
Marshal is too far-fetched an assumption on which to invalidate
legislation.
What has been said disposes of the suggestion that, because this
statute relating to a general administrative, nonprosecutorial
inquiry into the causes of fire is sustained, it would follow that
secret inquisitorial powers given to a District Attorney would also
have to be sustained. The Due Process Clause does not disregard
vital differences. If it be said that these are all differences of
degree, the decisive answer is that recognition of differences of
degree is inherent in due regard for due process. We are admonished
from time to time not to adjudicate on the basis of fear of foreign
totalitarianism. Equally so should we not be guided in the exercise
of our reviewing power over legislation by fear of totalitarianism
in our own country.
For these reasons, I join the opinion of the Court.
MR. JUSTICE BLACK, with whom The CHIEF JUSTICE, MR. JUSTICE
DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.
I believe that it violates the protections guaranteed every
person by the Due Process Clause of the Fourteenth Amendment for a
state to compel a person to appear alone before any law enforcement
officer and give testimony in secret against his will. Under the
reasoning of the majority, every state and federal law enforcement
officer in this country could constitutionally be given power to
conduct such secret compulsory examinations.
Page 352 U. S. 338
This would be a complete departure from our traditional methods
of law enforcement, and would go a long way toward placing "the
liberty of every man in the hands of every petty officer."
[
Footnote 2/1] By sanctioning the
Ohio statutes involved here, the majority disregards "this nation's
historic distrust of secret proceedings," [
Footnote 2/2] and decides contrary to the general
principle laid down by this Court in one of its landmark decisions
that an accused ". . . requires the guiding hand of counsel at
every step in the proceedings against him." [
Footnote 2/3]
The Ohio statutes give the state Fire Marshal and his deputies
broad power to investigate the cause of fires. These officers can
summon any person to appear before one or more of them to testify
under oath. [
Footnote 2/4] They can
punish him summarily for contempt if he refuses to answer their
questions or if he disobeys any of their orders. [
Footnote 2/5] They can exclude any person they wish
from the examination, including the witness' counsel. [
Footnote 2/6] After the questioning, the
Marshal or his deputy can arrest the witness if he believes that
there is evidence sufficient to charge him with arson or a similar
crime. [
Footnote 2/7] Any
statements taken from the suspect during these secret sessions must
be turned over to the Prosecuting Attorney for use in any
subsequent prosecution. [
Footnote
2/8] An "Arson Bureau" is established in the Fire Marshal's
office, and it is provided with
Page 352 U. S. 339
a staff charged with the duty of investigating fires to
determine if a crime has been committed. The Fire Marshal and his
deputy in charge of the "Arson Bureau" are expressly made ". . .
responsible . . . for the prosecution of persons believed to be
guilty of arson or a similar crime." [
Footnote 2/9] The statutory provisions show that the
Fire Marshal and his deputies are given the ordinary duties of
policemen with respect to "arson and similar crimes."
After appellants' place of business at Dresden, Ohio, burned
down, a deputy fire marshal summoned appellants to appear before
him with their business records to answer questions about the fire.
According to their unchallenged affidavit, the Fire Marshal
believed that they had started the fire. Appellants appeared before
the deputy with their lawyer, stating that they were willing to
testify fully, but only if they could have their counsel present
during the interrogation. The deputy informed them that the
interrogation would be held in private, and refused to admit their
lawyer. Under these conditions, they refused to testify. The deputy
proceeded to hold them in contempt and ordered them imprisoned
until they were willing to testify before him in secret.
Appellants' counsel was not present at the time they refused to
testify, nor when they were adjudged in contempt and ordered
imprisoned.
Appellants instituted this action for a writ of habeas corpus in
a state court of Ohio contending that their imprisonment would be
contrary to the Fourteenth Amendment. The Ohio Supreme Court
rejected this contention and affirmed the judgments of lower state
courts refusing to issue the writ. This Court upholds the decision
below, but even on the narrow grounds upon which it chooses to
decide the case, I think that its holding
Page 352 U. S. 340
is erroneous, and constitutes a very dangerous precedent.
[
Footnote 2/10] I believe that
the judgments below should be reversed because it is contrary to
due process of law to imprison appellants for refusing to testify
before the Deputy Fire Marshal in secret.
A secret examination such as the deputy proposed to conduct is
fraught with dangers of the highest degree to a witness who may be
prosecuted on charges related to or resulting from his
interrogation. Under the law of Ohio, it seems clear that any
statement allegedly secured from the witness may be used as
evidence against him at a preliminary examination to justify his
detention, before a grand jury to secure his indictment, and at the
formal trial to obtain his conviction. [
Footnote 2/11] The witness has no effective way to
challenge his interrogator's testimony as to what was said and done
at the secret inquisition. The officer's version frequently may
reflect an inaccurate understanding of an accused's statements or,
on occasion, may be deliberately distorted or falsified. While the
accused may protest against these misrepresentations, his
protestations will normally be in vain. This is particularly true
when the officer is accompanied by several of
Page 352 U. S. 341
his assistants and they all vouch for his story. [
Footnote 2/12] But when the public, or
even the suspect's counsel, is present, the hazards to the suspect
from the officer's misunderstanding or twisting of his statements
or conduct are greatly reduced. [
Footnote 2/13]
The presence of legal counsel or any person who is not an
executive officer bent on enforcing the law provides still another
protection to the witness. Behind closed doors, he can be coerced,
tricked or confused by officers into making statements which may be
untrue or may hide the truth by creating misleading impressions.
While the witness is in the custody of the interrogators, as
Page 352 U. S. 342
a practical matter, he is subject to their uncontrolled will.
Here it should be pointed out that the Ohio law places no
restrictions on where the interrogations can be held or their
duration. Exemplifying the abuses which may occur in secret
proceedings, this Court has repeatedly had before it cases where
confessions have been obtained from suspects by coercive
interrogation in secret. [
Footnote
2/14] While the circumstances in each of these cases have
varied, in all of them, as well as in many others, the common
element has been the suspect's interrogation by officers while he
was held
incommunicado without the presence of his
counsel, his friends or relatives, or the public. As was said in a
concurring opinion in
Haley v. Ohio, 332 U.
S. 596 at
332 U. S.
605:
"An impressive series of cases in this and other courts
admonishes of the temptations to abuse of police endeavors to
secure confessions from suspects, through protracted questioning
carried on in secrecy, with the inevitable disquietude and fears
police interrogations naturally engender in individuals questioned
while held
incommunicado, without the aid of counsel and
unprotected by the safeguards of a judicial inquiry. [
Footnote 2/15]"
Nothing
Page 352 U. S. 343
would be better calculated to prevent misuse of official power
in dealing with a witness or suspect than the scrutiny of his
lawyer or friends, or even of disinterested bystanders. [
Footnote 2/16]
A witness charged with committing contempt during the secret
interrogation faces the gravest handicaps in defending against this
charge. The interrogating officers may assert that he engaged in
certain contumacious behavior before them and seek to imprison him.
Even when the charges are tried by someone other than his
interrogators, [
Footnote 2/17]
the accused's efforts to show that the actual events were not as
pictured by the interrogating officers would normally be futile if
he could call on no one to corroborate his testimony. And when a
witness is deprived of the advice of counsel, he may be
completely
Page 352 U. S. 344
unaware that his conduct has crossed the obscure boundary and
become contemptuous. Moreover, executive officers will be somewhat
more chary in exercising the dangerous contempt power if their
actions are subject to external scrutiny.
I also firmly believe that the Due Process Clause requires that
a person interrogated be allowed to use legal counsel whenever he
is compelled to give testimony to law enforcement officers which
may be instrumental in his prosecution and conviction for a
criminal offense. This Court has repeatedly held that an accused in
a state criminal prosecution has an unqualified right to make use
of counsel at every stage of the proceedings against him. [
Footnote 2/18] The broader implications
of these decisions seem to me to support appellants' right to use
their counsel when questioned by the Deputy Fire Marshal. It may be
that the type of interrogation which the Fire Marshal and his
deputies are authorized to conduct would not technically fit into
the traditional category of formal criminal proceedings, but the
substantive effect of such interrogation on an eventual criminal
prosecution of the person questioned can be so great that he should
not be compelled to give testimony when he is deprived of the
advice of his counsel. It is quite possible that the conviction of
a person charged with arson or a similar crime may be attributable
largely to his interrogation by the Fire Marshal. The right to use
counsel at the formal trial is a very hollow thing when, for all
practical purposes, the conviction is already assured by pretrial
examination. [
Footnote 2/19]
Page 352 U. S. 345
Looking at the substance of things, the Fire Marshal's secret
interrogation contains many of the dangers to an accused that would
be present if he were partially tried in secret without the
assistance of counsel for "arson or a similar crime." Suppose that,
at the commencement of a criminal trial, the judge, acting under
statutory authorization, expelled everyone from the courtroom but
the prosecuting attorney and his assistants and allowed them to
question the accused "privately." After such interrogation, the
doors were thrown open, the jury recalled, and the jurors given a
resume or transcript of the accused's purported testimony.
And then the defendant's lawyer, who had been excluded from the
secret examination, was allowed to make such defense as he could.
Surely no one would contend that such a proceeding was due process
of law. Yet the techniques as well as the end effects of the Fire
Marshal's secret interrogation are substantially the same.
It is said that a witness can protect himself against some of
the many abuses possible in a secret interrogation by asserting the
privilege against self-incrimination. But this proposition
collapses under anything more than the most superficial
consideration. The average witness has little if any idea when or
how to raise any of his constitutional privileges. There is no
requirement in the Ohio statutes that the fire prevention officers
must inform the
Page 352 U. S. 346
witness that he is privileged not to incriminate himself. And,
in view of the intricate possibilities of waiver which surround the
privilege, he may easily unwittingly waive it. [
Footnote 2/20] If the witness is coerced or misled
by his interrogators, he may not dare to raise the privilege.
Undoubtedly he will be made aware that hanging over his head at all
times is the officer's power to punish him for contempt -- a power
whose limitations the witness will not understand. Furthermore, the
Fire Marshal or his deputies would seldom be competent to decide if
the privilege has been properly claimed or, even if they wish, to
instruct the witness how to make correct use of it.
To support its decision that Ohio can punish a witness for
refusing to submit to the Fire Marshal's secret interrogation, the
majority places heavy reliance on the practice of examining
witnesses before a grand jury in secret without the presence of the
witness' counsel. But any surface support the grand jury practice
may lend disappears upon analysis of that institution. The
traditional English and American grand jury is composed of 12 to 23
members selected from the general citizenry of the locality where
the alleged crime was committed. [
Footnote 2/21]
Page 352 U. S. 347
They bring into the grand jury room the experience, knowledge
and viewpoint of all sections of the community. They have no axes
to grind, and are not charged personally with the administration of
the law. No one of them is a prosecuting attorney or law
enforcement officer ferreting out crime. It would be very difficult
for officers of the state seriously to abuse or deceive a witness
in the presence of the grand jury. Similarly, the presence of the
jurors offers a substantial safeguard against for officers'
misrepresentation, unintentional or otherwise, of the witness'
statements and conduct before the grand jury. The witness can call
on the grand jurors if need be for their normally unbiased
testimony as to what occurred before them.
The majority also relies on a supposed proposition that there is
no right to use counsel in an administrative investigation.
[
Footnote 2/22] Here it is
relevant and significant to point out that, in 1946, Congress
specifically required in the Administrative Procedure Act that:
"Any person compelled to appear in person before any agency or
representative thereof shall be accorded the right to be
accompanied, represented, and advised by counsel or, if permitted
by the agency, by other qualified representative. [
Footnote 2/23]"
In reporting the bill which was substantially enacted as the
Administrative Procedure Act, the Senate Judiciary Committee
unanimously declared:
"By enacting this bill, the Congress -- expressing the will of
the people -- will be laying down for the guidance of all branches
of the Government and all
Page 352 U. S. 348
private interests in the country a policy respecting the minimum
requirements of fair administrative procedure. [
Footnote 2/24]"
And the House Judiciary Committee, in reporting the House
version of the Administrative Procedure Act, stated: "The bill is
an outline of minimum essential rights and procedures." [
Footnote 2/25] Heretofore, this Court has
never held, and I would never agree, that an administrative agency
conducting an investigation could validly compel a witness to
appear before it and testify in secret without the assistance of
his counsel.
In any event, the investigations authorized by the Ohio statutes
are far more than mere administrative inquiries for securing
information useful generally in the prevention of fires. Rather,
these statutes command action with a view toward the apprehension
and prosecution of persons believed guilty of certain crimes. The
Marshal or his deputies may compel a person suspected of arson or a
similar offense -- as appellants apparently were -- to appear and
give testimony under oath. And, as previously indicated, any
statement elicited from such person may be used as evidence against
him. Once testimony has been taken from a suspect, the duties of
the Marshal and his deputies are not at an end. They must arrest
the witness if they believe that the evidence is sufficient to
charge him with certain crimes. All testimony taken from him and
all other evidence must be turned over to the prosecuting attorney.
The Fire Marshal and his deputy in charge of the "Arson Bureau" are
specifically made " . . . responsible . . . for the prosecution of
persons believed to be guilty of arson or a similar crime."
Page 352 U. S. 349
The foregoing clearly demonstrates that the Fire Marshal's
interrogation is, and apparently was intended to be, an important
and integral part in the prosecution of the persons for arson or a
similar crime. [
Footnote 2/26]
The rights of a persons who is examined in connection with such
crimes should not be destroyed merely because the inquiry is given
the euphonious label "administrative." [
Footnote 2/27]
Finally it is argued that the Fire Marshal and his deputies
should have the right to exclude counsel and such other persons as
they choose so that their "investigatory proceedings" will not be
"unduly encumbered." From all that appears, the primary manner in
which the presence of counsel or the public would "encumber" the
interrogation would be by protecting the legitimate rights of the
witness. [
Footnote 2/28] It is
undeniable that law enforcement officers could rack up more
convictions if they were not "hampered" by the defendant's counsel
or the presence of others who might report to the public the manner
in which people were being convicted. [
Footnote 2/29] But the procedural safeguards
Page 352 U. S. 350
deemed essential for due process have been imposed deliberately
with full knowledge that they will occasionally impede the
conviction of persons suspected of crime.
The majority states that, "with so weighty a public interest as
fire prevention to protect," they cannot hold that it violates the
Due Process Clause to compel a witness to testify at a secret
proceeding. But is the public's interest in fire prevention so
weighty that it requires denying the person interrogated the basic
procedural safeguards essential to justice? Suppose that Ohio
authorized the Chief of State Police and his deputies to inquire
into the causes and circumstances of crime generally, and gave them
power to compel witnesses or persons suspected of crime to appear
and give testimony in secret. Since the public's interest in crime
prevention is at least as great as its interest in fire prevention,
the reasoning used in the majority's opinion would lead to the
approval of such means of "law enforcement." In fact, the opinion
could readily be applied to sanction a grant of similar power to
every state trooper, policeman, sheriff, marshal, constable, FBI
agent, prosecuting attorney, immigration official, [
Footnote 2/30] narcotics agent, health
officer, sanitation inspector, building inspector, tax collector,
customs officer, and to all the other countless state and federal
officials who have authority to investigate violations of the law.
[
Footnote 2/31] I believe that
the
Page 352 U. S. 351
majority opinion offers a completely novel and extremely
dangerous precedent -- one that could be used to destroy a society
of liberty under law and to establish in its place authoritarian
government.
No one disputes that Ohio has a great interest in the
enforcement of its fire laws. But there is nothing which suggests
that it is essential to adequate enforcement of these laws to give
the Fire Marshal and his deputies the extreme powers of
interrogation which they proposed to exercise here. This method of
law enforcement has heretofore been deemed inconsistent with our
system of justice. As MR. JUSTICE FRANKFURTER said in announcing
the Court's judgment in
Watts v. Indiana, 338 U. S.
49 at
338 U. S.
54:
"Ours is the accusatorial, as opposed to the inquisitorial,
system. Such has been the characteristic of Anglo-American criminal
justice since it freed itself from practices borrowed by the Star
Chamber from the Continent whereby an accused was interrogated in
secret for hours on end. . . . Under our system, society carries
the burden of proving its charge against the accused not out of his
own mouth. It must establish its case not by interrogation of the
accused, even under judicial safeguards, but by evidence
independently secured through skillful investigation. [
Footnote 2/32] "
Page 352 U. S. 352
Secret inquisitions are dangerous things justly feared by free
men everywhere. [
Footnote 2/33]
They are the breeding place for arbitrary misuse of official power.
They are often
Page 352 U. S. 353
the beginning of tyranny, as well as indispensable instruments
for its survival. Modern as well as ancient history bears witness
that both innocent and guilty have been seized by officers of the
state and whisked away for secret interrogation or worse until the
groundwork has been securely laid for their inevitable conviction.
While the labels applied to this practice have frequently changed,
the central idea wherever and whenever carried out remains
unchanging -- extraction of "statements" by one means or another
from an individual by officers of the state while he is held
incommunicado. I reiterate my belief that it violates the
Due Process Clause to compel a person to answer questions at a
secret interrogation where he is denied legal assistance and where
he is subject to the uncontrolled and invisible exercise of power
by government officials. Such procedures are a grave threat to the
liberties of a free people.
[
Footnote 2/1]
James Otis used this phrase in denouncing the Writs of
Assistance and General Warrants in his famous argument in Paxton's
Case. 2 The Works of John Adams (Boston 1850), App. 524.
[
Footnote 2/2]
In re Oliver, 333 U. S. 257,
333 U. S.
273.
[
Footnote 2/3]
Powell v. Alabama, 287 U. S. 45,
287 U. S.
69.
[
Footnote 2/4]
Page's Ohio Rev.Code, §§ 3737.11, 3737.12.
[
Footnote 2/5]
Id., §§ 3737.12, 3737.99(A).
[
Footnote 2/6]
Id., § 3737.13.
[
Footnote 2/7]
Id., § 3737.10.
[
Footnote 2/8]
Id., § 3737.10.
[
Footnote 2/9]
Id., § 3737.02.
[
Footnote 2/10]
I would also reverse the decision below because appellants were
found guilty of contempt and sentenced to jail in a proceeding
where they were denied the benefit of counsel. This Court has
expressly held that a person charged with contempt has a
constitutional right to be heard through counsel of his own
choosing at a trial on the contempt charge.
In re Oliver,
333 U. S. 257.
While the majority refuses to act on the denial here by claiming
that appellants failed to challenge it in the Ohio Supreme Court or
in their appeal to this Court, the record convinces me that the
matter has been properly raised for our consideration. When a
person is to be imprisoned as the result of a proceeding in which
he was denied his constitutional rights, we should not be anxious
to conclude that he has failed to raise the constitutional
questions in the correct procedural form.
Cf. Aetna Ins. Co. v.
Kennedy, 301 U. S. 389,
301 U. S. 393;
Hodges v. Easton, 106 U. S. 408,
106 U. S.
412.
[
Footnote 2/11]
See generally 15 Ohio Jur. 2d, Criminal Law § 388.
[
Footnote 2/12]
In this respect, it is important to note that, under the Ohio
statutes, the Fire Marshal or his deputies may permit such persons
as they wish to attend the interrogation.
[
Footnote 2/13]
This has been recognized from ancient times. As said in Matthew
18:15-16:
"Moreover, if thy brother shall trespass against thee, go and
tell him his fault between thee and him alone: if he shall hear
thee, thou has gained thy brother. But if he will not hear thee,
then take with thee one or two more, that in the mouth of two or
three witnesses every word may be established."
Blackstone, many centuries later, noted that:
"[The] open examination of witnesses
viva voce, in the
presence of all mankind, is much more conducive to the clearing up
of truth, than the private and secret examination taken down in
writing before an officer, or his clerk. . . . There, an artful or
careless scribe may make a witness speak what he never meant. . .
."
3 Blackstone Commentaries 373.
And Bentham subsequently pointed out:
"In case of registration and recordation of the evidence,
publicity serves as a security for the correctness in every respect
(completeness included) of the work of the registrator."
"In case of material incorrectness, whether by design or
inadvertence, so many auditors present . . . any or each of whom
may eventually be capable of indicating, in the character of a
witness, the existence of the error, and the tenor (or at least the
purport) of the alteration requisite for the correction of it."
1 Bentham, Rationale of Judicial Evidence (1827), 523.
[
Footnote 2/14]
See, e.g., Fikes v. Alabama, 352 U.
S. 191;
Leyra v. Denno, 347 U.
S. 556;
Watts v. Indiana, 338 U. S.
49;
Turner v. Pennsylvania, 338 U. S.
62;
Harris v. South Carolina, 338 U. S.
68;
Haley v. Ohio, 332 U.
S. 596;
Malinski v. New York, 324 U.
S. 401;
Ashcraft v. Tennessee, 322 U.
S. 143;
Ward v. Texas, 316 U.
S. 547;
White v. Texas, 310 U.
S. 530;
Chambers v. Florida, 309 U.
S. 227. For a discussion of the dangers and abuses
arising from the secret interrogation of suspects by police,
see the report of the American Bar Association's Committee
on Lawless Enforcement of the Law, Aug. 19, 1930. 1 Am.J.Police
Science 575.
[
Footnote 2/15]
In
United States v. Minker, 350 U.
S. 179 at
350 U. S. 188,
the Court pointed out with regard to proposed examinations by
immigration officers that:
"It does not bespeak depreciation of official zeal, nor does it
bring into question disinterestedness, to conclude that compulsory
ex parte administrative examinations, untrammeled by the
safeguards of a public adversary judicial proceeding, afford too
ready opportunities for unhappy consequences to prospective
defendants in denaturalization suits."
[
Footnote 2/16]
It seems wholly improper to "wait and see" in each case whether
a witness has been coerced or tricked into giving involuntary
statements at the secret interrogation and then to set aside
convictions which may be based on such statements. This "abuse by
abuse" approach fails to give the person interrogated sufficient
protection. Usually he has no substantial chance of showing that
the one or more interrogators used improper means to elicit
involuntary statements from him. Only in the most extreme cases
will this Court, or any other, be able to find that statements were
made involuntarily in the face of the interrogating officers'
testimony that they were spontaneous and freely given. Apparently
in Ohio, as in most jurisdictions, the suspect faces the additional
obstacle that his alleged statements are presumed to be voluntary
and he has the burden of proving that they were not. See 15 Ohio
Jur.2d, Criminal Law, § 387. In the few cases where a person
interrogated could prove that his statements were made
involuntarily he will still be subjected to considerable expense,
inconvenience and unfavorable publicity. More important, he will
already have suffered mistreatment at the hands of his
interrogators.
[
Footnote 2/17]
Here, of course, the interrogators were authorized to try the
charges of contempt which they preferred.
[
Footnote 2/18]
See, e.g., Powell v. Alabama, 287 U. S.
45;
Chandler v. Fretag, 348 U. S.
3.
[
Footnote 2/19]
This was recognized in
Ex parte
Sullivan, 107 F.
Supp. 514, 517. There, two persons suspected of crime had been
examined by law enforcement officers in secret without the presence
of counsel and had been tricked into making statements which were
instrumental in their conviction. At pp. 517-518, the district
judge observed:
"In view of [
Powell v. Alabama, 287 U. S.
45], to mention but one of many cases, unquestionably
Petitioners were entitled to have effective counsel
at the
trial. The question here is how they ever could have had
effective counsel at the trial, no matter how skilled, in view of
what went on before trial. They were denied effective counsel at
the trial itself because of what went on before trial while the
defendants were without counsel, and absolutely under the control
of the prosecution. . . . One can imagine a cynical prosecutor
saying: 'Let them have the most illustrious counsel, now. They
can't escape the noose. There is nothing that counsel can do for
them at the trial.' (Emphasis not supplied.)"
Also see Jackson, J., concurring in
Watts v.
Indiana, 338 U. S. 49,
338 U. S.
57.
[
Footnote 2/20]
See, e.g., Rogers v. United States, 340 U.
S. 367.
[
Footnote 2/21]
All of the cases cited by the majority as authority for the
practice before grand juries apparently involved a traditional
grand jury. It has been suggested that a state can constitutionally
provide for grand juries composed of less than 12 persons.
See
In re Murchison, 349 U. S. 133,
349 U. S.
139-140 (dissenting opinion);
In re Oliver,
333 U. S. 257,
333 U. S.
283-284 (dissenting opinion). Even if this suggestion is
correct, it certainly does not follow that a state can designate
one or more of its law enforcement officers as a grand jury and
constitutionally give them power to compel witnesses to appear and
give testimony in secret without the presence of counsel. This
point was expressly not considered in
In re Oliver, supra,
at
333 U. S. 265.
Such power in the hands of law enforcement officers is equally
obnoxious to due process whether they are styled as a grand jury,
as fire-prevention officers, or simply as policemen.
[
Footnote 2/22]
The only authorities offered by the majority as support for this
proposition are three lower federal court decisions.
[
Footnote 2/23]
5 U.S.C. § 1005(a).
[
Footnote 2/24]
S.Rep.No.752, 79th Cong., 1st Sess. 31.
[
Footnote 2/25]
H.R.Rep.No.1980, 79th Cong., 2d Sess. 16.
[
Footnote 2/26]
It seems highly unrealistic to equate this interrogation with a
proceeding involving a claim for workmen's compensation.
[
Footnote 2/27]
Nor should they be defeated because the Fire Marshal and his
deputies are given other duties besides investigating fires to
determine if any criminality is involved. For obvious reasons,
these other responsibilities do not make the interrogation proposed
here any less objectionable.
[
Footnote 2/28]
Perhaps, if a real need could be shown, counsel could be
restricted to advising his client and prohibited from making
statements or asking questions. And there are other alternatives,
much less drastic and prejudicial to the witness than the complete
exclusion of his counsel, which might provide satisfactory
protection for the witness without unduly impairing the efficiency
of the examination.
[
Footnote 2/29]
As Bentham said of criminal proceedings:
"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."
1 Bentham, Rationale of Judicial Evidence (1827) 524.
[
Footnote 2/30]
See United States v. Minker, 350 U.
S. 179.
[
Footnote 2/31]
The Court's opinion does not deny that secret inquisitorial
powers could be given such law enforcement officers. A concurring
opinion suggests that the grant of such broad power might be
unconstitutional so far as a district attorney is concerned.
However if policemen in general could constitutionally subject
persons to secret compulsory interrogation, how can it be said that
a district attorney could not? For constitutional purposes, I can
see no means of distinguishing this Ohio fire policeman from any
other policeman or law enforcement officer. Any attempted
constitutional distinction between these various law enforcement
officers would be purely artificial. The constitutionality of the
Ohio law authorizing secret interrogation by fire marshals acting
as policemen in arson cases should not be rested on a conjecture
that such an artificial distinction will be drawn by this Court at
some future day.
[
Footnote 2/32]
A survey of British law reveals nothing which is equivalent to
the type of examination that the Ohio Fire Marshal is allowed to
conduct. Official inquiries into the cause of fires are generally
made by the police.
"[W]hen the police are inquiring into a case, they have no power
to compel anyone to give them information; a witness may be
compelled to attend a
court and there give evidence, but,
before proceedings are actually brought, he can refuse to say a
word."
Jackson, The Machinery of Justice in England (2d ed. 1953) 137.
And in 1929, the Report of the Royal Commission on Police Powers
and Procedure, at p. 118, recommended that
"A rigid instruction should be issued to the Police that no
questioning of a prisoner, or a 'person in custody,' about any
crime or offence with which he is, or may be, charged, should be
permitted."
It is doubtful if any statements obtained by the police by
secret interrogation of a suspect would be admitted in evidence in
a subsequent trial.
See Rex v. Grayson, 16 Crim.App.R. 7
(1921); 43 Harv.L.Rev. 618; 43 Ky.L.Rev. 403.
In France, official inquiries into fires are carried out as part
of the general system of investigating crimes. The preliminary
investigation is under the control of the public prosecutor, and is
conducted by the police. They have no authority to examine
unwilling witnesses. The interrogation of such witnesses and of
suspects is the function of the
Juge d'Instruction, who is
a judge with legal training. Prior to 1897, he had broad power to
examine a witness under oath in secret without counsel.
See Ploscowe, Development of inquisitorial and
Accusatorial Elements in French Procedure, 23 J.Crim.L. &
Criminology 372. In 1882, Stephen commented on these secret
proceedings as follows:
"To a person accustomed to the English system and to English
ways of thinking and feeling . . . , the French system would be
utterly intolerable in England. The substitution of a secret
[interrogation] for our open investigation before the committing
magistrate would appear to us to poison justice at its source."
1 Stephen, History of the Criminal Law of England (1883)
565.
In response to widespread demands, French law was changed in
1897 to grant a witness appearing before the
Juge
d'Instruction the right to counsel. M. Constans, one of the
sponsors of the law in the French Senate, said:
"The
juge d'instruction is like other functionaries. He
must be controlled. . . . The presence of the lawyer will, of
itself, . . . prevent him from doing anything but his duty."
Quoted in Ploscowe,
supra, at 381.
See also
Esmein, History of Continental Criminal Procedure (1913); Keedy,
The Preliminary Investigation of Crime in France, 88 U.Pa.L.Rev.
692.
[
Footnote 2/33]
A leading Italian jurist recently said:
"The right to counsel, without which the right to defend oneself
is of no practical meaning, does not exist during the first phase
of the criminal process in those systems in which the pretrial
phase is carried out in secret without the presence of defense
counsel. This is the phase in which the accused, alone and
undefended before the examining magistrate, may be unable to find
in his own innocence sufficient strength to resist the effects of
prolonged questioning, and, in order to put an end to his ordeal,
may be reduced to signing a confession to a crime he has not
committed. Unfortunately, Italian criminal procedure retains this
sad inheritance from an era of tyranny, which is unreconcilable
with respect for the human personality. . . ."
"
* * * *"
"In criminal procedure as we see it applied, the accused is
still an inert object at the mercy of the inquisitor's violence. .
. . Held
incommunicado during the period of questioning,
the accused is alone with his examiners, without aid of counsel;
torture, although formally abolished, has returned under new guises
more scientific, but nonetheless cruel: the third degree, endless
hours of incessant questioning, truth serum."
Calamandrei, Procedure and Democracy (Adams transl. 1956),
93-94, 102-103.