In the Government's civil suit in a Federal District Court for
petitioner's denaturalization on the ground that she had
fraudulently procured citizenship by swearing falsely that she was
not, and had not been, a member of or affiliated with the Communist
Party, she voluntarily took the stand and testified at length in
her own defense. Thereafter, during cross-examination, she refused,
on grounds of self-incrimination, to answer questions which were
relevant to her testimony on direct examination. The District Court
ruled that she had waived her privilege by testifying in her own
defense and ordered her to answer, but she persisted in her refusal
to do so. For this, she was summarily adjudged guilty of criminal
contempt and sentenced to imprisonment.
Held: the conviction is sustained. Pp.
356 U. S.
149-157.
(a) There can be no doubt that stubborn disobedience of the duty
to answer relevant inquiries in a judicial proceeding brings into
force the power of the federal courts to punish for contempt.
Ex parte Hudgings, 249 U. S. 378, and
In re Michael, 326 U. S. 224,
distinguished. Pp.
356 U. S.
153-154.
(b) By taking the stand and testifying in her own behalf,
petitioner waived the right to invoke on cross-examination her
privilege against self-incrimination regarding matters made
relevant by her direct examination. Pp.
356 U. S.
154-156.
(c) The record does not fairly support petitioner's claim that
the District Court found a waiver simply in the act of taking the
stand and misled her as to the actual legal question involved. Pp.
356 U. S.
156-157.
234 F.2d 140, affirmed.
Page 356 U. S. 149
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is a proceeding of summary disposition, under Rule 42(a) of
the Federal Rules of Criminal Procedure, [
Footnote 1] of a finding of criminal contempt committed
in the actual presence of the court, the power to punish which is
given by 18 U.S.C. § 401. [
Footnote
2] The proceeding grew out of a suit for denaturalization
brought against petitioner pursuant to § 340(a) of the Immigration
and Nationality Act of 1952, 66 Stat. 260, as amended, 8 U.S.C.
(Supp. IV) § 1451(a). The complaint in the denaturalization suit
charged that petitioner had fraudulently procured citizenship in
1946 by falsely swearing that she was attached to the principles of
the Constitution, and that she was not and had not been for ten
years preceding opposed to organized government or a member of or
affiliated with the Communist Party or any organization teaching
opposition to organized government, whereas, in fact, petitioner
had been, from 1933 to 1937, a member of the Communist Party and
the Young Communist League, both organizations advocating the
overthrow of the Government of the United States by force and
violence.
Page 356 U. S. 150
At the trial in the denaturalization proceeding, petitioner was
called as an adverse witness by the Government under Rule 43(b) of
the Federal Rules of Civil Procedure. Petitioner admitted that she
had once been a member of the Young Communist League, but denied
that she had belonged to the Communist Party in the period before
1946. She refused to answer questions about activities and
associations that were unlimited in time or directed to the period
after 1946 on the ground that her answers might tend to incriminate
her, and the District Court sustained the claim of privilege. At
the close of the Government's examination, petitioner's counsel
stated that, "I won't cross-examine the witness at this point. I
will put her on on direct." [
Footnote 3]
Thereafter, petitioner took the stand as a witness in her own
behalf. She comprehensively reaffirmed the truth of the statements
made at the time of her naturalization, and, although she admitted
membership in the Young Communist League from about 1930, claimed
that she had resigned in 1935, and had not engaged in any Communist
activities from 1935 until her naturalization in 1946. Not content
to rest there, petitioner went on to testify that she had never
taught or advocated the overthrow of the existing government or
belonged to any organization that did so advocate, that she
believed in fighting for this country and would take up arms in its
defense in event of hostilities with Soviet Russia, and that she
was attached to the principles of the Constitution and the good
order and happiness of the United States. [
Footnote 4] This
Page 356 U. S. 151
testimony was directed to petitioner's present disposition
towards the United States, and was not limited to the period before
1946.
Page 356 U. S. 152
On cross-examination, the Government immediately put to
petitioner the question, "Are you now or have you ever been a
member of the Communist Party of the United States?" It also asked
numerous other questions relating to Communist activities since
1946 that petitioner had successfully refused to answer when first
examined. Petitioner again refused to answer, claiming the
privilege against self-incrimination. The District Court ruled
that, by taking the stand in her own defense, petitioner had
abandoned the privilege, and directed her to answer. However,
petitioner persisted in her refusal to answer any questions
directed towards establishing that she had been a Communist since
1946. For this she was cast in contempt of court and sentenced to
imprisonment for six months. The judgment of conviction was
affirmed by the Court of Appeals. 234 F.2d 140. Deeming the record
to raise important questions regarding the scope of the privilege
against self-incrimination and the power of a federal court to make
summary disposition of a charge of criminal contempt, we brought
the case here. 352 U.S. 908. Argument was had in the 1956 Term and
the case set down for reargument in the present Term. 354 U.S.
907.
The conduct for which petitioner was found guilty of contempt
was her sustained disobedience of the court's direction to answer
pertinent questions on cross-examination after her claim of the
privilege against self-incrimination had been overruled. On the
first argument in this Court, petitioner stood on the validity of
her claim of privilege as the essential ground for reversal here of
the judgment of the Court of Appeals. It was taken for granted by
petitioner no less than by the Government that for a party
insistently to block relevant inquiry on cross-examination subjects
him to punishment for contempt in the exercise of the power vested
in the federal courts throughout our history. Act of Sept. 24,
1789,
Page 356 U. S. 153
§ 17, 1 Stat. 83; Act of Mar. 2, 1831, 4 Stat. 487-488; R.S.
§725; Judicial Code, 1911, § 268, 36 Stat. 1163; 18 U.S.C. §
401.
On reargument, both sides, responsive to a suggestion from the
bench, discussed the relevance of
Ex parte Hudgings,
249 U. S. 378, to
the present situation. That case, followed in
In re
Michael, 326 U. S. 224,
held that, for perjury alone, a witness may not be summarily
punished for contempt. The essence of the holding in those cases
was that perjury is a specifically defined offense, subject to
prosecution under all the safeguards of the Fifth and Sixth
Amendments, and that the truth or falsity of a witness' testimony
ought not be left to a judge's unaided determination in the midst
of trial. Perjury is one thing; testimonial recalcitrance another.
He who offers himself as a witness is not freed from the duty to
testify. The court (except insofar as it is constitutionally
limited), not a voluntary witness, defines the testimonial duty.
See Judge Learned Hand in
United States v. Appel,
211 F. 495.
Such has been the unquestioned law in the federal judicial
system time out of mind. It has been acted upon in the lower courts
and this Court. Whatever differences the potentially drastic power
of courts to punish for contempt may have evoked, a doubt has never
been uttered that stubborn disobedience of the duty to answer
relevant inquiries in a judicial proceeding brings into force the
power of the federal courts to punish for contempt. Trial courts no
doubt must be on guard against confusing offenses to their
sensibilities with obstruction to the administration of justice. It
is no less important for this Court to use self-restraint in the
exercise of its ultimate power to find that a trial court has gone
beyond the area in which it can properly punish for contempt. We
are not justified in sliding from mere disagreement with the way in
which a trial court has dealt with a particular
Page 356 U. S. 154
matter, such as petitioner's conduct in the present case, into a
condemnation of the court's action as an abuse of discretion.
We thus reach the constitutional issue.
Petitioner contends that, by taking the stand and testifying in
her own behalf, she did not forego the right to invoke on
cross-examination the privilege against self-incrimination
regarding matters made relevant by her direct examination. She
relies on decisions holding that witnesses in civil proceedings and
before congressional committees do not waive the privilege by
denials and partial disclosures, but only by testimony that itself
incriminates. More particularly, petitioner's reliance is on
Arndstein v. McCarthy, 254 U. S. 71;
262 U. S. 262 U.S.
355;
266 U. S. 266 U.S.
34. In that litigation, a witness called before special
commissioners in bankruptcy proceedings filed schedules of his
assets and liabilities and made certain disclosures in respect to
his financial condition, but refused to answer numerous questions
on the ground that to do so might incriminate him. This Court held
that the witness' refusal did not constitute contempt; that, since
the evidence furnished "did not amount to an admission of guilt or
furnish clear proof of crime . . . ," the privilege had not been
abandoned, and the witness was entitled to "stop short" when
further testimony "might tend to incriminate him." 254 U.S. at
254 U. S. 72;
262 U.S. at
262 U. S. 358.
The testimony of petitioner in the present case admittedly did not
amount to "an admission of guilt or furnish clear proof of crime,"
but was, on the contrary, a denial of any activities that might
provide a basis for prosecution.
Our problem is illumined by the situation of a defendant in a
criminal case. If he takes the stand and testifies in his own
defense, his credibility may be impeached and his testimony
assailed like that of any other witness, and the breadth of his
waiver is determined by the scope of
Page 356 U. S. 155
relevant cross-examination.
"[H]e has no right to set forth to the jury all the facts which
tend in his favor without laying himself open to a
cross-examination upon those facts."
Fitzpatrick v. United States, 178 U.
S. 304,
178 U. S. 315;
and see Reagan v. United States, 157 U.
S. 301,
157 U. S.
304-305. The reasoning of these cases applies to a
witness in any proceeding who voluntarily takes the stand and
offers testimony in his own behalf. It is reasoning that controls
the result in the case before us.
A witness who is compelled to testify, as in the
Arndstein type of case, has no occasion to invoke the
privilege against self-incrimination until testimony sought to be
elicited will in fact tend to incriminate. It would indeed be
irrelevant for him to do so. If he is to have the benefit of the
privilege at all, and not be confronted with the argument that he
has waived a right even before he could have invoked it, he must be
able to raise a bar at the point in his testimony when his immunity
becomes operative. A witness thus permitted to withdraw from the
cross-fire of interrogation before the reliability of his testimony
has been fully tested may, on occasion, have succeeded in putting
before the trier of fact a one-sided account of the matters in
dispute. This is an argumentative curtailment of the normal right
of cross-examination out of regard for the fair claims of the
constitutional protection against compulsory
self-incrimination.
On the other hand, when a witness voluntarily testifies, the
privilege against self-incrimination is amply respected without
need of accepting testimony freed from the antiseptic test of the
adversary process. The witness himself, certainly if he is a party,
determines the area of disclosure and therefore of inquiry. Such a
witness has the choice, after weighing the advantage of the
privilege against self-incrimination against the advantage of
putting forward his version of the facts and his reliability as a
witness, not to testify at all. He cannot reasonably
Page 356 U. S. 156
claim that the Fifth Amendment gives him not only this choice
but, if he elects to testify, an immunity from cross-examination on
the matters he has himself put in dispute. It would make of the
Fifth Amendment not only a humane safeguard against judicially
coerced self-disclosure, but a positive invitation to mutilate the
truth a party offers to tell.
"[T]here is hardly justification for letting the defendant
affirmatively resort to perjurious testimony in reliance on the
Government's disability to challenge his credibility."
Walder v. United States, 347 U. S.
62,
347 U. S. 65.
The interests of the other party and regard for the function of
courts of justice to ascertain the truth become relevant, and
prevail in the balance of considerations determining the scope and
limits of the privilege against self-incrimination. [
Footnote 5] Petitioner, as a party to the
suit, was a voluntary witness. She could not take the stand to
testify in her own behalf and also claim the right to be free from
cross-examination on matters raised by her own testimony on direct
examination.
Petitioner claims that the District Court found that she had
waived the privilege merely by taking the stand, whereas the Court
of Appeals affirmed her conviction on the ground that she had taken
the stand and testified as she did. Petitioner argues from this
distinction that her conviction has been affirmed on a charge not
made in the District Court. She also suggests that the reason given
by the District Court for finding a waiver misled her as to the
actual legal question involved, and that, but for the assertions of
the court, she might have withdrawn her opposition to the
cross-examination and answered the questions put by the
Government.
Page 356 U. S. 157
The record does not fairly support the statement that the
District Court found a waiver simply in the act of taking the
stand. After petitioner had testified on direct examination, the
court ruled that "the defendant, having taken the stand in her own
defense, has waived the right to invoke the Fifth Amendment. . . ."
In view of the circumstances surrounding this ruling and the
testimony that preceded it, it is reasonably clear that the court
meant to convey by "having taken the stand in her own defense" what
she said on the stand, not merely that she physically took the
stand. As the District Court expressly stated in its opinion
finding petitioner in contempt, it had cautioned her that "she had
waived the right to claim any privileges under the Fifth Amendment
by reason of having testified as a witness in her own behalf." The
reason for abandonment of the privilege, as thus expressed by the
court, is wholly consistent with the reason given by the Court of
Appeals in affirming the conviction, and with our ground for
upholding the judgment of the Court of Appeals. Nice questions in
interpreting the record to ascertain whether a trial court has
discharged its duty of appropriately framing the legal issues in a
litigation, or at least not misframing them to the detrimental
reliance of one of the parties, are not here presented. Taken in
context, the ruling of the District Court conveyed a correct
statement of the law, and adequately informed petitioner that, by
her direct testimony, she had opened herself to cross-examination
on the matters relevantly raised by that testimony. The judgment
is
Affirmed.
[
Footnote 1]
"A criminal contempt may be punished summarily if the judge
certifies that he saw or heard the conduct constituting the
contempt and that it was committed in the actual presence of the
court. The order of contempt shall recite the facts and shall be
signed by the judge and entered of record."
[
Footnote 2]
"A court of the United States shall have power to punish by fine
or imprisonment at its discretion, such contempt of its authority,
and none other, as --"
"(1) Misbehavior of any person in its presence or so near
thereto as to obstruct the administration of justice;"
"(2) Misbehavior of any of its officers in their official
transactions;"
"(3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command."
[
Footnote 3]
Counsel for petitioner in this Court did not represent her in
the trial court.
[
Footnote 4]
"Q. Are you willing to take up arms in defense of this country,
in the event of any hostility between the United States and
Russia?"
"A. Yes."
"Q. Regardless of whatever the reason may be for any hostility
between the government of the United States and the Government of
Russia?"
"A. That is correct."
"Q. In Question 28, you were asked: 'Are you a believer in
anarchy, or the unlawful damage, injury or destruction of property,
or of sabotage'? And you answered 'No.'"
"Was that a true answer to that question?"
"A. That was a true answer."
"Q. You say it was not only a true answer at the time you filed
the petition, July 16, 1946, and is that the true answer
today?"
"A. It is true. It was a perfectly true answer to that question.
I never believed in overthrowing anything. I believe in fighting
for this country. I like this country. I never told anybody I
didn't."
"Q. Did you ever teach or advocate anarchy or overthrow of the
existing government in this country?"
"A. Teach?"
"Q. Did you ever teach the idea that we ought to overthrow the
government of the United States?"
"A. No, I never did."
"Q. Did you ever advocate that?"
"A. No."
"Q. Did you ever say that we should?"
"A. No, I never did."
"Q. To your knowledge, did you ever belong to any organization
that taught or advocated anarchy or the overthrow of the existing
government of this country?"
"A. No. As much as I know, I didn't belong, to destroy the
country. I believe in helping the country, and helping the people.
That was my life of living, not destroying the things that the
people put up."
"Q. Are you attached to the principles of the Constitution of
the United States, and well disposed to the good order and
happiness of the United States?"
"A. That I am."
"Q. What do you understand by that? What do you understand by
those words 'attached to the principles of the Constitution'?"
"A. The way I understand this, when my country needs me, I fight
for it and do what is right among the people."
[
Footnote 5]
Striking the witness' testimony, or relying on the trier of fact
to take into account the obvious unfairness of allowing the witness
to escape cross-examination, must often, in practice, be poor
substitutes for a positive showing under searching
cross-examination that the testimony is in fact false.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS concur, dissenting.
This is another decision by this Court eroding the
constitutional privilege against self-incrimination.
See,
Page 356 U. S. 158
e.g., Feldman v. United States, 322 U.
S. 487;
Rogers v. United States, 340 U.
S. 367.
The questions which petitioner refused to answer undoubtedly
called for responses which might have tended to incriminate her.
Nevertheless, the Court holds that she can be imprisoned for
contempt on the ground that a defendant in a civil action who
voluntarily takes the stand to testify waives his privilege against
self-incrimination to the extent of relevant cross-examination.
Thus, in substance, the majority has extended the rule heretofore
applied in criminal prosecutions to civil proceedings. I think this
further encroachment on the privilege is unwarranted. I would
reverse the petitioner's conviction on the basis of the general
rule stated in
Arndstein v. McCarthy, 254 U. S.
71;
262 U. S. 262 U.S.
355;
266 U. S. 266 U.S.
34, that a witness in a civil case does not forfeit the right to
claim his privilege unless he makes disclosures which amount to "an
actual admission of guilt or incriminating facts." 262 U.S. at
262 U. S. 359.
* Petitioner
concededly made no such disclosures.
In my judgment, the rule of waiver now applied in criminal
cases, although long accepted, is itself debatable, and should not
be carried over to any new area absent the most compelling
justification. By likening the position of a defendant who
voluntarily takes the stand in a civil case to that of an accused
testifying on his own behalf in a criminal prosecution. the
majority unfortunately fails to give due consideration to material
differences between the two situations. For example, failure of a
criminal defendant to take the stand may not be made the subject of
adverse comment by prosecutor or judge,
Page 356 U. S. 159
nor may it lawfully support an inference of guilt. 18 U.S.C.
§3481;
Wilson v. United States, 149 U. S.
60. On the other hand, the failure of a party in a civil
action to testify may be freely commented on by his adversary and
the trier of fact may draw such inferences from the abstention as
he sees fit on the issues in the case.
Bilokumsky v. Tod,
263 U. S. 149,
263 U. S.
153-154. Thus to apply the criminal rule of waiver to a
civil proceeding may place a defendant in a substantial dilemma. If
he testifies voluntarily, he can be compelled to give incriminating
evidence against himself, but, unlike a defendant in a criminal
case, if he remains off the stand, his silence can be used against
him as "evidence of the most persuasive character."
Bilokumsky
v. Tod, supra, at
263 U. S.
154.
The Court brushes aside this dilemma by assuming that a civil
defendant can control the scope of his waiver when he voluntarily
takes the stand because he "determines the area of disclosure and
therefore of inquiry." I do not believe this assumption is correct.
While it is true that a party can determine the area of his own
disclosures on direct examination, the scope of permissible
cross-examination is not restricted to the matters raised on
direct, but may include other and quite different matters if they
will aid the court or jury to appraise the credibility of the
witness and the probative value of his testimony. Such questions,
which may range over a broad area and refer to matters collateral
to the main issues, cannot be foreclosed by the witness, and often
cannot even be anticipated by him.
See, e.g., Radio Cab, Inc.
v. Houser, 76 U.S.App.D.C. 35, 128 F.2d 604;
Atkinson v.
Atchison, Topeka & Santa Fe R. Co., 197 F.2d 244.
See
also Powers v. United States, 223 U.
S. 303,
223 U. S.
314-316.
Furthermore, a party to a civil action, unlike the defendant in
a criminal case, may be compelled by his adversary to take the
stand and thus forced into a situation
Page 356 U. S. 160
(as illustrated by this case) where he must claim the privilege
or incriminate himself. By claiming his privilege, he may well
prejudice his case for reasons wholly unrelated to its merits. In
order to mitigate this damage, he may feel great compulsion, either
on cross-examination by his own counsel or by taking the stand
later on his own behalf, to dispel some of the impression created
by the claim of privilege. But this he cannot do under the Court's
holding without thereby forfeiting his constitutional
privilege.
The reason offered by the Court for compelling a civil defendant
to incriminate himself or be imprisoned for contempt is that to do
otherwise would be to accept testimony untested by
cross-examination, and thus extend "a positive invitation to
mutilate the truth a party offers to tell." If punishment for
contempt were the only method of protecting the other party and the
trier from a one-sided, distorted version of the truth, the
substantial encroachment made by the majority on the privilege
against self-incrimination might be somewhat more tolerable. But it
is not. For example, as an obvious alternative, such one-sided
testimony might be struck in full or part, if the occasion
warranted, with appropriate directions by the judge for the jury to
disregard it as unreliable. And, in some instances where the
prejudice to the opposing party was extreme and irremediable, the
court might even enter judgment in his favor.
See Hammond
Packing Co. v. Arkansas, 212 U. S. 322,
212 U. S.
349-354.
Compare National Union of Marine Cooks v.
Arnold, 348 U. S. 37. By
such means, the trial judge could protect the right of the opposing
party to a fair trial. At the same time, the witness would not be
treated as having waived his privilege so that he could be punished
by fine or imprisonment for refusing to incriminate himself.
Since I believe that petitioner's conviction should be reversed
for the reasons stated above, I find it unnecessary
Page 356 U. S. 161
to discuss whether she was entitled to a trial with all the
safeguards of the Bill of Rights before she could be punished for
the crime of contempt. My views in that respect are set forth in
some detail in my dissenting opinions in
Sacher v. United
States, 343 U. S. 1,
343 U. S. 14, and
Green v. United States, post, p.
356 U. S.
193.
* As I construe the holding in
Arndstein v. McCarthy,
it is based on the simple ground that, once a witness has
incriminated himself, subsequent inquiries concerning the same
offense cannot harm him any further, and the reason for the
privilege disappears.
But cf. Rogers v. United States,
340 U. S. 367.
MR. JUSTICE BRENNAN, dissenting.
I would reverse this judgment. The District Courts do not have
the untrammeled discretion to punish every contemptuous act as a
criminal contempt. That is the basic teaching of such decisions as
Ex parte Hudgings, 249 U. S. 378, and
In re Michael, 326 U. S. 224. It
will not be gainsaid that danger of abuse of this extraordinary
power inheres in the absence of the safeguards usually surrounding
criminal prosecutions, notably trial by jury and any but
self-imposed judicial restraints upon the extent of punishment.
That danger of abuse has required this Court closely to scrutinize
these cases to guard against exceeding the bounds of discretion in
the use of the power. We do so in the exercise of our general
supervisory authority over the administration of criminal justice
in the federal courts,
McNabb v. United States,
318 U. S. 332,
318 U. S. 340,
but primarily because of the "importance of assuring alert
self-restraint in the exercise by district judges of the summary
power."
Offutt v. United States, 348 U. S.
11,
348 U. S.
13.
With that principle in mind, I cannot conclude that it was
proper to convict petitioner of criminal contempt. Her contempt
consisted in refusing to answer questions put to her on
cross-examination because she believed that the Fifth Amendment
afforded her a privilege to make such refusals. The majority
concedes that the reason given to the petitioner by the trial judge
to prove her waiver was an incorrect one, but concludes that,
"[t]aken in
Page 356 U. S. 162
context . . . , [it] conveyed a correct statement of the law. .
. ." The fact remains that the trial judge's ruling on waiver was
incorrect. He advised Mrs. Brown that she had waived her privilege
by the simple act of taking the stand. But the rule that the
privilege is waived by taking the stand developed in criminal cases
as an historical corollary of the fact that the accused could not
even be called or sworn as a witness. 8 Wigmore, Evidence (3d ed.
1940), § 2268. It has no application in civil cases. In civil
cases, the most that can be said is that a party witness subjects
himself to cross-examination as to all matters testified to on
direct.
The trial judge made his final ruling on the question of waiver
on the morning of February 18, 1955. He repeated his statement that
Mrs. Brown had waived her privilege by taking the stand.* The
petitioner, believing that her conduct was privileged, continued to
refuse to answer. No further evidence was offered after the
petitioner's refusal to answer the questions put to her on
cross-examination by the Government. On that same afternoon, the
trial judge delivered his opinion finding "by clear, unequivocal,
and convincing evidence that the defendant did procure her
citizenship illegally and fraudulently." He then proceeded to hold
the petitioner in contempt for her refusal to answer. It is true
that, at this time, he advised the petitioner that she had
waived
Page 356 U. S. 163
her privilege by the testimony which she had given, but it was
of little help, coming at the same time as the sentence.
In these circumstances, I can hardly believe that petitioner was
guilty of such contempt of the authority of the court as to merit
six months' imprisonment. The most that can be said of her conduct
was that her lawyer could not predict that, "taken in context," the
appellate courts would sustain the trial judge's technically
incorrect ruling on waiver.
This Court has recognized that the criminal contempt power
should be limited in its exercise to "the least possible power
adequate to the end proposed,"
In re Michael, supra, at
326 U. S. 227.
The "end proposed," it should be clear, is not to impose vengeance
for an insult to the court whose decree has been flouted, but to
aid the fair and orderly administration of justice by deterring
noncompliance with the court's lawful order. But I think that, in
contempts, as in other areas of the law, penal sanctions should be
used sparingly, and only where coercive devices less harsh in their
effect would be unavailing. In other words, there is a duty on the
part of the district judges not to exercise the criminal contempt
power without first having considered the feasibility of the
alternatives at hand. MR. JUSTICE BLACK persuasively demonstrates
in his dissenting opinion that the trial judge here might
reasonably have resorted to several corrective devices to avoid
both prejudice to the Government's case and unnecessary delay in
the conduct of the trial.
Cf. Rubenstein v.
Kleven, 150 F. Supp.
47; Fed.Rules Civ.Proc. 37(b). In addition, it appears that
ordinary exercise of the civil contempt power,
cf. Yates v.
United States, 355 U. S. 66, not
even considered so far as this record shows, might have succeeded
in achieving all the ends of justice without requiring resort to
the far more drastic criminal sanction.
The Court does not ground the affirmance upon any finding that
Mrs. Brown's conduct was actually disrespectful
Page 356 U. S. 164
of the trial judge, or that she obstinately flouted his
authority. Indeed, her resort to her Fifth Amendment rights
manifestly had substantial merit, for the majority does not say
that the Amendment's protection against being required to give
incriminating answers did not apply to the questions, but only that
she waived the protection of the Amendment in the
circumstances.
The situation, it seems to me, cried out for "alert
self-restraint" by way of consideration of the other available
correctives, before the judge took the particularly harsh step of
sending Mrs. Brown to jail for six months. The trial judge gave no
thought to the use of the other sanctions and, in my view, his
exclusive reliance upon the criminal contempt power was arbitrary
in the circumstances. I would therefore set aside the
conviction.
*
"THE COURT. The Court holds that the defendant having taken the
stand in her own defense, has waived the right to invoke the Fifth
Amendment, and I will permit the witness to answer the
question."
"
* * * *"
"THE COURT. The Court has just ruled that, you having taken the
stand in this case in your own defense, by so doing you have waived
the right to invoke the Fifth Amendment. And I have just informed
your counsel, and you, that you must answer the question. Now, if
you do not answer the question, the Court will hold you in contempt
of court."