Brown v. United States – Oral Reargument – October 22, 1957

Media for Brown v. United States

Audio Transcription for Oral Argument – April 04, 1957 in Brown v. United States

Audio Transcription for Oral Reargument – October 22, 1957 in Brown v. United States

Earl Warren:

Number 43, Stefena Brown, Petitioner, versus United States of America.

Mr. Crockett.

George W. Crockett, Jr.:

Mr. Chief Justice, Associate Justices.

The petitioner here is a 48-year old woman who is employed as a waitress in a restaurant herein to the working class people in the City of Detroit.

She knows practically nothing about the Constitution or the Fifth Amendment except perhaps what she has seen on TV or what her attorney told her in connection with this trial.

The attorney, judging from the record, was not too experienced himself with the interpretations of the Fifth Amendment, and there are certain definite areas of misjudgment, I would say, that will immediately occur to the Court as you examine this record.

The judge who tried the case, with a very recent appointee to our District Court bench, I am not too sure but what this was not his first contested trial and I am sure this was the first time he was called on to exercise the drastic power of criminal contempt.

Now, it was this combination of circumstances which gave rise to the case that we have before us today, our case which, in my humble opinion, never should have been in court.

I recall when I first appear before this Court, I think it was Mr. Justice Frankfurter who made the comment to me that sometimes justice is the appearance of justice.

And later in Offutt against United States, I believe the majority opinion repeats that very appropriate statement.

I entered this case in the appeal stage and I conceive it to be my function to suggest possible reasons in law by which this Court might right the injustice that occurred in this case.

Of course, I am assuming that the Court agrees with me that there has been an injustice and it’s incumbent upon me to point that out.

Now, as to the facts, the petitioner was born in Poland.

She migrated to the United States at the age of two in 1911.

She has lived in the United States ever since.

Her formal education seized with the seventh grade at which time she was 15 years old and she had to go to work.

I think the record clearly indicates that throughout her life, she has identified herself with so-called oppressed people in our social order and particularly with the members of the working class.

Her testimony admits that during her youth and during the period of the Depression, this identification was so-called oppressed causes led her to become a member of the Young Communist League, which, I understand, was the junior section of the Communist Party.

She denies that she was ever a member of the Communist Party.

Also in her youth, she married a man, who, I believe the record bears us out, was a member of the Communist Party.

And in January 1935, her husband was expelled from the Communist Party and it was at that time that she ceased to be active in the Young Communist League.

In 1946, she made application for citizenship under the provisions of the Nationality Act of 1940.

That Act prohibited the naturalization of anyone who, within the period of 10 years prior to his application, had been a member of any organization teaching anarchy or the disbelief in organized government.

Petitioner, in the course of her naturalization process, did not reveal that she had been a member of the Young Communist League.

As a matter of fact, when she registered in 1940 under the Alien Registration Act, there was a question there that inquired what organizations have you belonged to in the past five years, and she did not indicate in answering that question that she had been a member of the Young Communist League.

Now, come the passage of the Immigration and Nationality Act of 1952 which permits the revocation of naturalization wherever the Government is able to show a willful misrepresentation or concealment of a material fact, the Government filed its complaint for denaturalization in the District Court at Detroit.

The essence of that complaint is that petitioner was guilty of a fraud.

In that, in her application for citizenship and in the processes leading up to the grant of citizenship, she had not revealed her former affiliation with the Young Communist League and with the Communist Party.

Now, that case came on to be tried.

And here, we see the first error of judgement, I believe, that was made by a trial counsel.

George W. Crockett, Jr.:

Since denaturalization is a civil proceeding, the Government was permitted under the rules to call the defendant to the stand as a witness.

The course of the Government’s examination, both the dependent and her counsel made it abundantly clear that with respect to all of the questions relating to her organizational affiliations that were limited in point of time to the period prior to her 1946 naturalization, she would answer those questions.

But as to the organizational affiliations subsequent to 1946, she would rely upon her privilege under the Fifth Amendment.

There is, I believe, a rational basis for that distinction.

Certainly, this Court has held in the (Inaudible) case that questions intended to elicit from a witness an admission of membership in the Communist Party are questions which might tend to incriminate into that extent the privilege is available.

It is also true, however, that with respect to a showing of a possible offense which is outlawed by the statute of limitations as certainly a Smith Act offense predicate upon activity prior to 1946 would be outlawed, the privilege would not apply.

So as I say, there was a sound legal basis from making that distinction, the trial court was aware of it.

And throughout petitioner’s examination under the rule, the trial court recognized her right to the protection of the Fifth Amendment.

At the conclusion of petitioner’s examination under the rule, her attorney requested leave to delay her cross-examination until after the Government had completed its case in sheet.

Charles E. Whittaker:

To delay her what?

George W. Crockett, Jr.:

To delay her cross-examination.

Charles E. Whittaker:

Rather than to call her as his own witness?

George W. Crockett, Jr.:

Rather than to call her as his own witness, she was a witness for the Government.

And under the rule, even her own attorney was entitled to cross-examine her with respect to the testimony she had given while she was on the stand as a witness for the Government.

Charles E. Whittaker:

(Inaudible)

George W. Crockett, Jr.:

No.

I say he requested permission to delay his cross-examination until after the Government had completed its case in sheet.

The trial court denied that request.

Now, at that point, counsel for the petitioner had a choice of either to go on with this cross-examination at that time when it was abundantly clear that there could be no subsequent contention that there was a waiver by taking the stand or he could excuse the petitioner and recall her as his own witness after the Government rested.

I think it was an error in tactics, trial tactics that he didn’t proceed with his cross-examination at that time because, as I examined the record, there isn’t one thing that he was able to bring out on her direct examination as his own witness that he could not have brought out by cross-examining her while she was a witness for the Government, perhaps the first one of these errors that has given rise to this case.

Petitioner was excused from the stand and the Government subsequently produced two, possibly three witnesses, all of whom, I believe I am correct in saying, fall in the category of paid informers that are frequently used by the Government in denaturalization proceedings in that particular area.

Their testimony was to the effect that petitioner not only had been a member of the Young Communist League but that she had been a member of the Communist Party and they brought that period of membership up to a point subsequent to the date of her naturalization in 1946.

At the conclusion of the Government’s case, petitioner’s counsel then called petitioner as his witness and there is no question in the record that that’s precisely what he did.

As a matter of fact, there was some colloquy with the Court and the Court made sure that the record reflected the fact that petitioner was now taking the stand as a witness called back her own counsel.

And now, we come to the second tactical error made by counsel.

Knowing that the Court would prepare to go along with his view that the privilege could be claimed with respect to all questions that were limited — let me begin that again.

Knowing that the Court was prepared to go along with his view that the privilege was available with respect to the membership prior to 1946 or alleged Communist Party activity prior to 1946, he tried, in the course of his examination of his client, to limit his questions to that period but he made one or two mistakes in such a limitation and they are in the record, and I have set them forth in a footnote in our main brief and I believe it appears on pages 5 to 6, certain questions that he put to her as his witness which were not limited in time.

Take for example this question.

Referring to her petition for naturalization which she already had identified and it said that she answered the questions as therein stated, counsel asked her “In question 28, you were asked “Are you a believer in anarchy or the unlawful damage, injury or destruction of property or sabotage?”

And you answered, “No.”

George W. Crockett, Jr.:

“Was that a true answer to that question?”

And the witness then answered, “That was the true answer.”

And then counsel said, “You say it was not only a true answer at that time, you filed the petition July 16th, 1946, and is that the true answer today?”

So he’s coming down to a period subsequent to 1946.

And there are two or three other instances in which the same error of judgement has made and it is that error of judgement that is relied upon by the Court of Appeals in affirming the conviction below.

Now, after petitioner had completed her direct examination as a witness called by her own counsel, the Government was entitled to cross-examine and the first question put to her on cross-examination was, “Are you now or have you ever been a member of the Communist Party?”

With respect to the portion of that question that has to do with “Have you ever been?”

Obviously, that had been answered because when she was a witness for the Government, she had categorically denied that she’d ever been a member of the Communist Party not withstanding she had admitted membership in the Young Communist League.

It is the other part of the question, “Are you now,” of course perhaps a part of the second half or, “have you ever been a member?”

Because that portion certainly related to the period subsequent to 1946.

As to that, the petitioner claimed her privilege.

The trial court ruled and I think it’s pretty clear that she had waived the protection of the Fifth Amendment by voluntarily taking the stand as a witness in her own behalf.

I recalled when I argued this case before, Mr. Justice Whittaker raised the question whether or not it was really correct to say that that was a basis of the trial court’s ruling.

Charles E. Whittaker:

(Inaudible)

George W. Crockett, Jr.:

On the contrary, you did.

Yours was the first question, and I’ll always remember that.

If you will examine the transcript at pages 33 to 34 and again at page 40, you will see that the trial court was most specific.

It was his view that the rule with respect to the waiver in criminal cases should also apply in civil cases and that as soon as a person voluntarily takes the stand in a civil case, these is a waiver of the Fifth Amendment privilege.

Now, the Court of Appeals did not uphold the trial court in that calling nor did it disagree with the trial court in that holding.

Instead, the Court of Appeals said regardless of whether or not there was a waiver when she took the stand, there was a waiver based on her prior testimony that having undertaken to speak concerning the question of organization or affiliations on her direct examination, she was compelled then to submit to cross-examination.

In effect then, what the Court of Appeals is saying is that we must apply in our interpretation of the Fifth Amendment the same rule that is customarily applied in the law of evidence that whatever doors are open on direct examination remain open for purposes of questioning on cross-examination.

That, I submit, has never been the rule of this Court and I rely on this Court’s opinion in the Arndstein cases that are cited in my brief.

I don’t want to take the time to review that facts in those cases.

I do want to point out that certainly, when the same question is presented to this Court on four different occasions between the same litigants and the Court adheres to its ruling, the Court must be convinced of the correctness of that ruling.

The ruling in —

(Inaudible)

George W. Crockett, Jr.:

I see.

Thank you.

The ruling in Arndstein was to this effect that in a civil proceeding, a witness or a fraud defendant, who takes the stand whether voluntarily or involuntarily, does not waive the privilege under the Fifth Amendment unless and until he even admits guilt or gives clear proof of crime.

Now, that was the holding in the Arndstein case.

George W. Crockett, Jr.:

I’m reminded at this point at the time of my last argument, I think it was Mr. Justice Brennan who questioned me about the Arndstein case and gave me a hypothetical case that really carries Arndstein to its outermost limits.

It was suggested that I consider the case of two automobile drivers not accompanied with passengers going in opposite directions down the highway and colliding with the result that one driver is killed.

The other driver brings a suit against the administrator of the estate of the deceased driver, he takes the witness stand, he gives his version of how the accident occurred and of course, it’s a one-sided version.

On cross-examination, he was asked certain questions, I presume a possible answer to which might show him guilty of negligent homicide.

And so, he relies upon his privilege under the Fifth Amendment and refuses to answer.

The justice asked me under those circumstances should he be permitted to go to the jury on his one-sided version of the case, and my answer was that if we apply the Arndstein rule as this Court announced that rule, he would be entitled to go to the jury on even that one-sided version of the case to which, if I’m not mistaken, Mr. Justice Brennan indicate that he thought it was most unfair and then the Chief Justice inquired if it was necessary to go that far in this case and I answered no without elaborating upon my note.

I want to suggest that in such cases, certainly the state courts have found a way of taking care of a situation without depriving the Fifth Amendment of its effectiveness in that type of situation because the state cases many of them hold.

And under those circumstances, the trial court has justified in striking that portion of the direct testimony which, because of the invocation of the Fifth Amendment, is not subjected to cross-examination.

I want to suggest that the Court might wish, in its opinion in this case, to consider at least amending the Arndstein rule to the extent to confirm the authority of the Federal District Courts to do essentially the same thing where an attempt to reconcile the constitutional right to rely upon the Fifth Amendment conflicts with the constitutional right to cross-examination.

Now, leaving for the moment the lower court’s decision in Arndstein or before leaving it, I do want to make one additional point.

There is basis, I think, to conclude from the examination of this record that trial counsel for the petitioner in this case as well as the petitioner was really misled by the trial court’s rulings because when you examine the record, you will find that there were several instances for the trial court sustain the claim of the Fifth Amendment or held that there had not been a waiver not withstanding the witness that answered previous questions that were not limited in time to the period prior to 1946.

For example, the witness was asked concerning certain individuals who were — were well-known in the area to be members of the Communist Party and who were expected to be witnesses in this particular case, she was asked if she knew a person whose name was — pardon me, Virgil Stewart or Bernice Baldwin or Earl Reno.

Now, those questions were not limited in time.

She wasn’t asked, “Did you know them before 1946?

Just, “Did you know them?”

And with respect to those questions, she answered.

Now, if we apply the rule which the Court of Appeals later applied, we would have to conclude from that that she had opened the door by answering the questions with respect to her associations or knowledge and so forth of these individuals.

And to that extent, she had waived the rule.

The trial court, however, and I think it’s clear, was attempting to apply the rule in Arndsted — in Arndstein rather and was saying that while she could have claimed the privilege with respect to those questions under the theory that an answer might tend to incriminate her, the fact that she did not claim the privilege did not amount to a waiver because there had been no admission of guilt or clear proof of crime.

In other words, the scope of the area within which the privilege can be claimed is not necessarily coextensive with the scope of the area in which waiver occurs.

In short, you have to go a little further before you find waiver than you need go in order to sustain a claim of a privilege.

Now, let me consider another point that the Government raises in its brief and that is that in any event, the rule in Arndstein should be limited to cases where the witnesses is — where the witness is an involuntary witness on the stand.

The Government does not deny that the Arndstein rule is the rule to be applied in civil proceedings.

As a matter of fact, in my main brief, as I point out at the bottom of page 13, the Government filed a brief in the Rogers case.

And in that brief, while they criticize the Court’s ruling in Arndstein, they said this, “Where the witness is not the defendant in a criminal prosecution, there is a substantial body of authority that testimony as to a transaction waives the privilege with respect all other inquiries pertinent to that transaction,” which is what I call the open door rule in which is the rule that was applied in this case by the Court of Appeals, but the Government continues, “This Court however has indicated that the privilege is not waived merely by a testimony as to a transaction.

And that before the witness can be held to have waived, there must be an element of incrimination in what he has disclosed.”

Now, there are additional reasons why you can’t predicate a waiver in a civil case upon a mere taking of a stand.Let me mention one or two of them.

First of all, the right to claim the protection of the Fifth Amendment does not come into play until there is an element of compulsion to testify concerning an incriminating matter, not simply a compulsion to testify, but a compulsion to testify concerning an incriminating matter.

It might be said therefore that a witness who appears in court pursuant to a subpoena is compelled to appear and is compelled to testify but he is not compelled to testify as to an incriminating matter.

Charles E. Whittaker:

(Inaudible)

George W. Crockett, Jr.:

I suppose only a witness who is not a party would be appearing pursuant to a subpoena.

And so, what I’m talking about is an involuntary witness using the time to mean a witness who is appearing pursuant to a subpoena.

And the point that I’m making is that the subpoena itself does not supply the element of compulsion because the subpoena does not compel him to testify to incriminating matter, it compels him to come in and testify generally.

Now, it is not until he claims the protection of the Fifth Amendment and the Court then issues a directive to him to testify concerning this matter which he claims of incriminating that you get the element of compulsion so that the right to claim the privilege itself does not arise until after the witness is on the stand after he has been sworn and after he has been asked the question.

Obviously, up until that point, since there was no right to claim it, there could not be a waiver merely by taking the stand.

Now, there are certain practical difficulties that flow from any holding that there’s a waiver by taking the stand.

Felix Frankfurter:

Well, may I ask you whether you think the Court of Appeals rested on the proposition that merely by taking the stand is a waiver?

George W. Crockett, Jr.:

No, the Court of Appeals was careful to point out that it was not passing on that theory —

Felix Frankfurter:

Yes.

George W. Crockett, Jr.:

— used by the trial court.

The Court of Appeals went on the theory that a prior testimony itself constituted, I presume, an admission of guilt and to that extent, passes to it a waiver.

Felix Frankfurter:

Well, whether admission of guilty or not, it was a party’s defensive position, wasn’t it?

George W. Crockett, Jr.:

That’s right.

Felix Frankfurter:

I was wondering whether I misapprehend the emphasis of your argument that merely by taking the stand, there’s a waiver because as you correctly indicate, the Court of Appeals doesn’t go on that ground.

George W. Crockett, Jr.:

That’s true, but I —

Felix Frankfurter:

There is not —

George W. Crockett, Jr.:

— I feel called upon to also point out why the District Court was wrong because, while I don’t think it was likely to happen, the Court of Appeals did not specifically say that the District Court was wrong.

It said, “We are not going to pass on that question now.”

Felix Frankfurter:

But you will — you will have to face and you have to deal with the ground taken by the Court of Appeals, namely, whether the petitioner when she was calling as a witness by the Government was in fact merely continuing prior testimony on her own behalf.

And therefore, for practical purposes, this is as though the Government were cross-examining.

George W. Crockett, Jr.:

That is correct.

Felix Frankfurter:

Is that correct?

George W. Crockett, Jr.:

That is correct.

Felix Frankfurter:

That’s — we —

George W. Crockett, Jr.:

And that’s what I’m coming —

Felix Frankfurter:

— we must consider the record in that — in — in that aspect.

George W. Crockett, Jr.:

We must consider the record in the sense that perhaps the petitioner in the course of her directive testimony while she was a voluntary witness on the stand had indicated clearly an intention to waive the privilege because she had answered questions which tended to incriminate her.

Felix Frankfurter:

Well, whether — that’s a legal question.

That’s legal conclusion in order to sustain the Court of Appeals.

But before it gets to the legal significance, am I wrong in saying that the Court of Appeals treated the question into — sought to be elicited to the answers which was sought to be elicited by the questions were put as in effect cross-examination on what she had put in on her direct.

George W. Crockett, Jr.:

That is correct.

Felix Frankfurter:

All right.

George W. Crockett, Jr.:

That is correct.

Hugo L. Black:

Did the District Court make a finding on whether she had waived within that manner?

George W. Crockett, Jr.:

The District Court did not.

The District Court made a finding, if you want to call it that, based in entirely upon her voluntarily taking the witness stand.

Hugo L. Black:

But you have here, didn’t it, a case by the District Court did not hold somewhat the witness said and as of here and so forth that the witness had waived by what she said.

But the Court of Appeals did, on its own motion, take that position.

George W. Crockett, Jr.:

That is correct.

And that is why I argue in my brief that in effect, the Court of Appeals has amended the certificate which the District Court was required to make because under the Federal Rules, the District Court did only punish them merely for contempt if it entered a certificate setting forth all of the facts constituting the contempt.

There was at least one fact here which is necessary to sustain the affirmance by the Court of Appeals but which was not made by the District Court and that is what I call a factual inference that the witness, because of her answers to the broad questions put to her by her counsel, indicated an intention to waive the Fifth Amendment.

Now, the trial court didn’t find that.

The trial court said, “Regardless of your intention as a matter of law, once you take the witness stand, you waive,” and that’s what it set forth in the certificate to the extent then that the —

Felix Frankfurter:

Well, is that set forth in the certificate?

George W. Crockett, Jr.:

I believe it is.

Felix Frankfurter:

I though you —

George W. Crockett, Jr.:

Now, let me explain also about certificate, Your Honor.

We don’t — we don’t —

Felix Frankfurter:

I thought you were suggesting a minute ago that the Court of Appeals amended this certificate and I was like to put to you whether — what you are not really conveying by that remark is that the certificate of the District Court was inadequate?

It did not comply —

George W. Crockett, Jr.:

I certainly do want to say that.

Felix Frankfurter:

— did not comply with the requirements with the specific require — or the requirements for specific details of the rules.

George W. Crockett, Jr.:

Correct.

It failed (Voice Overlap) —

Felix Frankfurter:

That’s a different —

George W. Crockett, Jr.:

— an essential factual element necessary to sustain (Voice Overlap) —

Felix Frankfurter:

But whether or not there was a waiver, that isn’t what might be ordinarily called the question of fact, that’s a question of law which, if it’d be a waiver, I should think would be inherent in the record.

George W. Crockett, Jr.:

I think where a waiver is — is based upon an inference to be drawn from the facts, it would be a question of fact and not a question of law.

Felix Frankfurter:

Well, whether the inference could be drawn with — whether that constituted a waiver, I should think it’s for a court to decide however.

George W. Crockett, Jr.:

Well, the inference could be —

Felix Frankfurter:

There is no jury here anyhow so or was there?

George W. Crockett, Jr.:

Now, I want to touch briefly on some other facts with difficulties that we get into when they say that there is a waiver as soon as you take the stand.

It’s generally recognized, I think, as mid law that the claim of the waiver has to be made under oath.

Prior to the time that the witness takes the stand, he’s not under oath.

And therefore, he is in no position to claim the waiver.

It’s generally recognized also that the claim of the waiver must be made in a factual setting where the Court can clearly see that there is a possibility of incrimination.

And all too frequently, that factual setting will not appear until after the witness has taken the stand.

If, therefore, we say that the waiver occurred when he took the stand, we are in effect compelling him to — to prejudge what questions are going to be put to him and whether or not those questions will call for a possible incriminating answer.

Now, I want to leave the trial court and deal, if I may, with the holding of the Court of Appeals.

The Court of Appeals, as I point out earlier, did not sustain the trial court in its contention that there was a waiver as soon as my client took the witness stand.

Instead, the Court of Appeals said, “On the basis of the general answers you gave on the questions were put to you by your counsel questions that were not limited to the pre-1946 period, we believe that you, in effect, opened the door.”

That’s in essence what the Court is saying.

“You have indicated in absence of fear of incrimination.

You have demonstrated a willingness to testify in this particular area.

And having done that, you have waived the protection of the Fifth Amendment and you must subject yourself to cross-examination the same as any other witness would do.”

Now, the authority, which the Court of Appeals relied on to sustain in that respect, was Raffel against United States, a case which has come in recently, I think, for some criticism in this Court.

In the Grunewald case, it was considered and there were some members of the Court who thought that it should be overruled but I believe it was not overruled in that case but we have to regard it as still the law.

But it’s still the law with respect to a defendant in a criminal case who voluntarily takes the stand.

It cannot be the law with respect to a defendant in a civil case and takes the stand unless we are to completely ignore Arndstein.

My second point in connection with that is that it is almost impossible to conceive of a situation where a witness by denying guilt by saying, “I’ve done nothing that is incriminating,” thereby, waives the privilege.In short, what I’m saying is that under no circumstances can a negative answer to the question that is supposed to be an incriminating question serve as the predicate for a waiver because by virtue of the question being negative, the witness has denied that there is any guilt whatever associated with him.

So —

Charles E. Whittaker:

(Inaudible)

George W. Crockett, Jr.:

I think she can, that’s the whole kind of my argument.

And at the — it bothered the Court of Appeals because they said the Government is entitled to examine the witness, to cross-examine the witness on this.

The answer to that is that the Constitution has said the Government is not entitled in this limited area to cross-examine the witness unless the witness voluntarily agrees to do so.

And this Court has interpreted that constitutional provision as saying not until the witness has admitted guilt or given clear proof of crime are we prepared to say she has voluntarily agreed to submit the cross-examination in that area.

Felix Frankfurter:

Mr. Crockett, if the witness — if the witness admits guilt, that is practically pleads guilty there, you don’t need anything else.

George W. Crockett, Jr.:

Well, you — you may be right.

I’m inclined to think that you are right.

If the witness has admitted guilt, then perhaps, there is no question about —

Felix Frankfurter:

The point of this —

George W. Crockett, Jr.:

— cross-examination or not.

But I have to take the law as I think trial counsel in this case has to take the law as it existed at the time the case was tried.

And as of that time, Arndstein said there is no waiver until there is either an admission of guilt or your answers have furnished clear proof of crime.

Charles E. Whittaker:

(Inaudible) I don’t understand.

Is that to say that in such a case, the witness can get on the stand and testify valiant really on her own behalf so long as she doesn’t incriminate herself and all her question — answers are self-serving, she may then not be subjected to cross-examination on the scope of her directive testimony?

George W. Crockett, Jr.:

I think your question you put is just a little too broadly.

There would be some areas of her direct examination on which he could be cross-examined.

But if the question itself calls for an answer that might be incriminating, if she has not previously, in her direct examination, given clear proof of crime, she can stop right there and say, “I will not answer that question.”

Charles E. Whittaker:

On the contrary, she says, “I am not guilty.

I did not belong to any organization that — that advocated the overthrow of the Government.

I’m innocent.”

That’s the end of it.

She can’t be crossed examined.

George W. Crockett, Jr.:

She is certainly by — by denying guilt has not given any clear proof of guilt.

She didn’t —

Charles E. Whittaker:

And therefore couldn’t —

George W. Crockett, Jr.:

— given any proof whatever.

Charles E. Whittaker:

— and therefore her — her testimony has to stand.

We have to take that.

She can’t be cross-examined, is it?

George W. Crockett, Jr.:

No, I don’t say that.

That’s why I am amending my reply to Mr. Justice Brennan by suggesting that this Court might do as the trial court in (Inaudible), a case cited on the Government’s brief, suggested that it had the power to do and that is to strike that cross — that — that direct examination that is not subject to cross-examination by virtue of the privilege of the Fifth Amendment.

In other words, we will not give you an unequal advantage in upholding your claim of the Fifth Amendment nor will we give you an advantage.

We will strike out that portion of the testimony.

Now, also, in the course of our previous —

Charles E. Whittaker:

You say then we let the Court or the jury hear the evidence then immediately tell them, “Why, don’t even mind”.

George W. Crockett, Jr.:

I don’t say it.

The Constitution says it —

(Inaudible)

George W. Crockett, Jr.:

— that if in that area you entitled the claim of privilege, is the choice that has been made by the people of the United States.

And it has to be changed by them if they disagree with this Court’s interpretation of the Fifth Amendment.

Charles E. Whittaker:

Well, what — what particular provision of the Constitution?

I am just trying to get your point clear in my mind and I maybe slow about it.

What particular provision in the Constitution specifically authorizes this.

George W. Crockett, Jr.:

No person shall be compelled on a criminal case to be a witness against himself.

Charles E. Whittaker:

Yes.

George W. Crockett, Jr.:

This Court has —

Charles E. Whittaker:

Compel.

George W. Crockett, Jr.:

— interpreted that to mean that no person may be compelled in any case to give incriminating evidence which might later be used against him in a criminal case.

Charles E. Whittaker:

Is one compelled then when he takes the stand and covers the case fully and voluntarily?

George W. Crockett, Jr.:

He is not compelled to give incriminating testimony.

That’s a point I was making a little earlier.

The compulsion does not arise until he claims the privilege and the trial court overrules his claim and then directs him to answer.

He is then being compelled to give evidence which, if it is incriminating, would violate his privilege under the Fifth Amendment.

Now, in the course of our argument here before, I believe it was Mr. Justice Frankfurter who called our attention to this Court’s ruling in In re Hudgings with the suggestion that perhaps the element of obstruction is a necessary element to be assumed in all cases where it is sought to punish someone for criminal contempt.

I would like now to address myself to that proposition, and I began with a flat statement that I interpret In re Hudgings as applying to all criminal contempts in the federal court whether they are under Section 1, 2 or 3 of Section 401.

I am aware that this Court, during the course of a previous argument, implied if there was any decision indicating that the requirement of a showing of obstruction had been made with respect to a contempt predicate upon a violation of subsection (3).

I must confess that I know of no such case.

But I do know of one case, and that’s Clark against U.S.

It’s not cited in my brief.

That’s reported at 289 U.S. at page 1 where the Court has found the element of obstruction necessary in order to uphold a charge of criminal contempt based upon a violation of the second section of Section 401.

That second subsection refers to misconduct on the part of any officer of the Court.

In the Clark case, there was involved a juror who had given false answers in the course of her voir dire and had actually concealed some of the facts.

And in the first holding in that case, the opinion was written by Mr. Justice Cardozo, we find these words, “Concealment or misstatement by a juror upon a voir dire examination is punishable as a contempt if its tendency and design are to obstruct the processes of justice.”

Now, in as much as the Court has found no statutory difficulty in concluding that the requirement in In re Hudgings concerning obstruction applies to subsection (2).

I don’t anticipate that there would be any difficulty in finding that also applied to subsection (3), but I don’t predicate my argument upon that alone.

A rereading of Ex Parte Hudgings, I think, makes the point additionally clear.

For there, the Court said, “An obstruction,” and I’m reading now from page 2 of my supplemental memorandum, “An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is then the characteristic upon which the power to punish for contempt must rest.

This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted.”

George W. Crockett, Jr.:

My interpretation of In re Hudgings then is that it admits that no exception insofar as contempts in the federal court is concern.

Counsel, in his reply brief, dwells primarily upon the rule at common law and that at common law, any violation of a court’s order amounted to a contempt without the necessity of a showing of obstruction.

The first answer to that, of course, is that there is no so such thing as a common law contempt in federal court.

There’s no such thing as inherent power of a lower Federal court to punish for contempt.

Its power must be gained from the three corners — four corners rather of Section 401 and only then as interpreted by this Court.

And in Hudgings, this Court has said and this Court repeated in In re Michael and also in Offutt.

This Court calls attention to the pervading effect of this requirement of obstruction as applied wherever it is sought to punish someone for a federal — for a criminal contempt in the federal court.

Example in Offutt, this Court said, “The pith of this rather extraordinary power to punish without the formalities required by the Bill of Rights for the prosecution of federal crimes generally, is that the necessities of the administration of justice require such summary dealing with obstructions to it.

It is a mode of vindicating the majesty of law, in its active manifestation, against obstruction and outrage.”

Now, it was suggested in the course of the trial of the earlier case that as a practical matter, every refusal to obey an order of a trial court really amounts to an obstruction and you will find the same thought expressed in In re Hudgings, and I believe the same thought is expressed in In re Michael.

But this Court made it abundantly clear that that falls under the heading of incidental obstruction and that the Court was not concern there with incidental obstruction.

It meant something that disrupted the processes of the administration of justice and that something had to clearly appear from the record in the case and had to — I would say had to clearly be found by the trial court in his certificate.

Otherwise, he has not set forth the facts constituting the alleged contempt which is required whenever he seeks to punish someone summarily for a criminal contempt.

The certificate in this case, and there is no formal certificate where I have not raised the issue, I believe, the trial court intended that his opinion had served as his certificate because he specifically directed that it be tied up and handed up to him for signature, and I think that, perhaps, was a substantial compliance with the requirement.

I believe, however, that if the Court is not prepared to say that the element of obstruction must be shown in every case of criminal contempt whether it’d be under subsections (1), (2) or (3), the minimum that this Court should say is that the element of obstruction must be clearly shown wherever it is sought to punish summarily an alleged criminal contempt.

And I say that because I think the rule itself makes it clear that the Congress there or perhaps, it was the Court is concerned with the — with the matter of having a certificate filed by the trial judge that will serve as one and the same time as both the indictment charging this so-called crime as well as the judgment itself.

The requirements of due process would require that in any such indictment, the accused, at least, is entitled to know that conduct on his part which is alleged to have constituted the crime.

And if In re Hudgings is good law, and I submit that it is, one necessary element of that would be a finding of obstruction and there is no such finding in this particular case.

Now, my final point has to do with the overall limitation on the power of the federal courts to punish for contempt and that limitation was first expressed, I believe, in Anderson versus Dunn where this Court used the term “the least power — “the least possible power adequate to the end proposed”.

The end proposed in all of these cases is, of course, the removal of the so-called obstruction.

I contend, therefore, that in this case, the trial court did not used “the least possible power adequate to the end proposed”.

If he had, he would have merely stricken the testimony on direct examination without applying the drastic authority to punish summarily for criminal contempt.

I suggest further that the mere fact that the trial court is given, under the statute, this question to determine whether the alleged conduct will be considered as civil or criminal contempt does not necessarily make his determination of that issue controlling.

And that in a given case where the obstruction could be removed by treating the conduct as civil contempt and therefore not punish merely as drastically as criminal contempt, there is an obligation on the part of the trial court to do that.

Felix Frankfurter:

Do you think —

Hugo L. Black:

May I — excuse me.

Felix Frankfurter:

Go on.

Hugo L. Black:

I just wanted to ask.

I asked you if you — what is the ordinary procedure taken in several cases in state courts and federal court, one of both, where a party-plaintiff refuses to answer questions?

Are there any cases where they have been cited for contempt that you know of and tried for contempt or is the practice to render judgment by default dismissed that cause of action —

George W. Crockett, Jr.:

I can’t —

Hugo L. Black:

— deny him relief?

George W. Crockett, Jr.:

— I can’t tell Your Honor what the practice has been generally in state courts.

I can only refer to the fact, as I make the point in my supplemental brief on pages 8 and 9 that certainly, in many of the state courts, it’s recognized that the Court under such circumstances has the authority to strike the testimony of the witness who was relying upon the Fifth Amendment.

Perhaps, I can go even farther and say that that American Law Institute, Basic Problems of Evidence by Professor Morgan suggest that that is the correct way to handle this situation.

Now, as far as striking the pleading’s concerned, I had bother that the threshold by this Court’s opinion in Hovey versus Elliott where the Court, in effect, said that in — in cases such as this, when you strike the part as pleading, you are, in effect, denying him his day in court and that would be a denial of due process.

I do not believe that Hovey versus Elliot would preclude this Court from authorizing the lower district courts in these cases such as this to strike the part as testimony in direct examination.

Hugo L. Black:

Why was it — what was the type of testimony in Hovey versus Elliot, the type of reason which caused the Court the hold the sentence or what the relief has?

George W. Crockett, Jr.:

(Voice Overlap) of the — the — if I remember the facts then, I’m not so sure that I do, I think it was an attempt to use the least power necessary to remove the obstruction either the defendant there had failed to — to testify, maybe I shouldn’t try to remember because it doesn’t clearly to mind at this time but I do know that that case stands for the proposition that the federal — lower courts do not have the authority to strike the pleadings and go on and proceed to judgment by default.

Now, in any event, that wouldn’t apply the denaturalization proceeding because this Court has held at even where the defendant has in default in a denaturalization proceeding, the Government still has the burden of proving its case from what it really amounts to beyond a reasonable doubt.

Hugo L. Black:

Well, the Government has achieved its end here, has it not?

George W. Crockett, Jr.:

The Government certainly — the Government certainly had achieved this end if, in the first place, the trial court disregarded all of the petitioner’s testimony except in those instances where it was corroborated by the other witnesses.

The trial court had no difficulty whatever reaching the conclusion that — that the petitioner’s citizenship could be — should be cancelled.

On top of that, the Government has already completed deportation proceedings in order this woman deported to Poland.

Now, in addition to that, they seek to sustain here a sentence of six months because of her refusal to answer a question which she believed and which her counsel, I believe, had the right to assume was protected by the Fifth Amendment.

Your Honor —

Hugo L. Black:

What if —

George W. Crockett, Jr.:

— wrote a dissenting opinion in Rogers case.

I think I need only refer to it to indicate that this case, itself, typifies the problems that we, practical lawyers, have in trying to apply the meaning of the doctrine of waiver in these cases.

Hugo L. Black:

What if the remedy given a defendant under the Federal Rules where discovery is sort of the plaintiff and the plaintiff refuses to make the discovery, do you know?

George W. Crockett, Jr.:

I think the rule provides there that the answer can be stricken.

I think it does.

Hugo L. Black:

What is the general rule in the State which provides for discovery about what we call interrogatories that are filed to the plaintiff if he doesn’t answer?

George W. Crockett, Jr.:

I think the answer —

Hugo L. Black:

(Voice Overlap) —

George W. Crockett, Jr.:

— there is that his pleading can be stricken and the Court can proceed as though he were in default.

Felix Frankfurter:

I want to ask you whether this quotation of yours was honestly is done which you fantastically write it in context which is often has to be whether that means that every time the Court or court punishes you, of course, to punish for contempt, the Appellate Court and this Court ultimately will have to decide whether they couldn’t have dealt with it some other way without punishing for contempt.

For instance, if a man throws an anchor at a judge (Inaudible) dispose of it is to have the bandit taken out of the room.

Does that mean he can’t be punished for contempt?

That sentence was used with reference to the power of the legislature and not with reference to the Court that in each case, one asked to decide whether —

George W. Crockett, Jr.:

That could be —

Felix Frankfurter:

— the judge could have done something else.

I’m not saying that this part was always exercised while we are (Inaudible)

George W. Crockett, Jr.:

This Court however —

Felix Frankfurter:

And I think that in most of the occasion, it ought not be disposed of in the most sensible way.

We’re dealing here with power.

And I just wonder if you’ll need to suggest that whenever a person, it comes clearly within Section 1 or subdivision (1) or (3) within 401 or rather in order to determine whether it does come within, the Court has to decide whether it couldn’t have been done some other way more expeditiously, more effectively at least.

George W. Crockett, Jr.:

What I mean —

Felix Frankfurter:

I can’t believe that for a minute.

George W. Crockett, Jr.:

What I mean to say is that the turn, the least possible power at —

Felix Frankfurter:

That is not the test to be applied in deciding whether when an unequally stronger judge may say — may punish him for contempt, sentence him for three months rather than have the bail and take him out and say “This felony has to much to drink the night before or he got a temper or whatnot?”

George W. Crockett, Jr.:

I would say that in the case where an ink load thrown at a judge, all the reasonable men would agree that there has been a disruption of the judicial process.

Felix Frankfurter:

Yes, but he — he could —

George W. Crockett, Jr.:

And that it could be punished summarily.

Felix Frankfurter:

Well, why?

You can terminate it by an English baler for the martial take them out and go on with the business.

In fact, I think that is (Inaudible)

George W. Crockett, Jr.:

Do I understand Your Honor asking whether or not in that case, it is necessary to show obstruction?

Felix Frankfurter:

No.

You said that we must consider whether this was the least thing that could be done to deal with the situation or it’s not the proposition of the —

George W. Crockett, Jr.:

That’s right.

Felix Frankfurter:

— defendant?

George W. Crockett, Jr.:

That’s right.

Felix Frankfurter:

Well, if that should be taken literally, then in each case, one must decide whether although a court has the power of contempt which was recognized by Mr. Justice Johnson to lead the part from a statutory power of the Judiciary Act but in each case, you must decide couldn’t he had done something else.

It would have been better and quicker and easier.

George W. Crockett, Jr.:

I think it’s uncommon upon the Court under the Court’s own interpretation and I refer particularly to the Court’s opinion in the Nye case that the intent of Congress based upon the happenings in connection with the trial of Judge Peck indicated an intention on the part of Congress to limit the use of the summary contempt power to those situations where it was absolutely necessary to remove the so-called obstruction.

And if it was not necessary, there is no power to punish summarily for contempt.

Now, that doesn’t meant that the individual goes — got free.

Felix Frankfurter:

Nobody could agree with you more than I do that it was desirable to limit the kind of power that was exercised by Judge Peck out in Missouri.

But collectively (Inaudible) but that doesn’t help me to decide whether when a situation comes within the contempt power as limited by that Act which in subsequently what we now have is (Inaudible) whether when something comes within that Act, we can say all the judge, if he’d been more sensible, would have done it from other way.

George W. Crockett, Jr.:

I would suggest that the same test applies there that this Court frequently has called upon to apply where it is determining whether or not there had been an abuse of discretion.

Felix Frankfurter:

Well, I — that’s — I agree with that opinion.

Earl Warren:

Mr. Spritzer.

Ralph S. Spritzer:

Mr. Chief Justice, may it please the Court.

When this case was here last term, petitioner, as the Court will recall, devoted herself entirely to the argument that there had been no waiver of privilege.

We denied that as we do now for we say basically that the notion that a party can volunteer direct testimony in her own cause consisting here of a series of general denials of broad exculpatory statements, the word “general denials” is the term of petitioner’s counsel in its brief on re-argument.

The notion that a party can volunteer such general denials on direct testimony and then its her privilege, when cross-examined for purposes of testing the veracity of those exculpatory statements, is simply one that we think is wholly unacceptable and has no foundation at all.

If I understand correctly, the argument of petitioner’s counsel here today, namely, that a defendant in a case and takes the stand and then ward off cross-examination, so long as a defendant in his direct examination does not incriminate himself, then I suppose that the logic of that would apply equally to the criminal case.

It would follow, I suppose, if that were a sound argument that a defendant in a criminal case can take the stand and protest innocence and then meet every question on cross-examination with the statement that the answer might incriminate him.

I think I hardly need to cite the cases to demonstrate that that is not the law.

William O. Douglas:

But this defendant had refused to testify at trial?

Ralph S. Spritzer:

Since it was a civil case, I think she was subject to being called as a party witness under the civil rules.

She was so called — she claimed privilege when she was called as a compelled witness.

And in every instance that the claim was made, it was sustained by the District Judge.

She got into this difficulty, the citation for contempt came about only as the result of the fact that she reappeared on the stand a second time volunteering as a witness in her own behalf.

On that second appearance as a witness in her own behalf, she testified without limitation as of the time.

She said that both prior to the date of naturalization and after the date of denaturalization at the present times, she had, she had never done nor never believed in various matters.

Then when she was cross-examined, she reasserted the privilege.

Felix Frankfurter:

Mr. Spritzer, would you mind, at the outset, stating to us what you believe to be Arndstein judgement side?

Ralph S. Spritzer:

Well, I — I certainly was coming to that.

I think petitioner is simply confusing the case of a compelled witness with the case of a volunteer witness.

Arndstein was called before a commissioner in bankruptcy.

He was a bankrupt.

And there was a petition of fraud.

And he was called before the Commissioner as a compelled witness.

The Commissioner asked for a certain date or an information and Arndstein produced a limited amount.

Actually, I think it was a statement of some — a statement of assets and liability.

He was then asked to give further information and to produce more and claim privilege.

But this Court, ultimately, held that the partial disclosures made by giving this limited amount of information did not constitute a waiver of privilege on the part of a compelled witness.

It said that a compelled witness, an involuntary witness does not waive privilege, of course, until the point is reached where he makes a disclosure which gives proof of crime or implication in a crime.

Ralph S. Spritzer:

Of course, in the case of a compelled witness, he can’t claim privilege until something incriminating is asked to him.

Felix Frankfurter:

Before you go off with the generality.

I’d like to ask some more about Arndstein because it’s merely a (Inaudible) case.

When you say he was compelled witness —

Ralph S. Spritzer:

Yes.

Felix Frankfurter:

— the compulsion was that a bankrupt must file schedules.

Ralph S. Spritzer:

Yes, sir.

Felix Frankfurter:

And what he did was to file schedules that the Government claimed — not the government but the — just being bankrupt, was it?

Was it?

Ralph S. Spritzer:

It was the commissioner in banking (Inaudible)

Felix Frankfurter:

Commissioner — commissioner in bankruptcy.

What if his claim was that he, in fact, lied in those schedules?

He said forth, “I have these and these assets,” which impliedly means he hadn’t any the others.

Ralph S. Spritzer:

Yes.

Felix Frankfurter:

Then he was sought to be examined about that schedule.

So why isn’t that — why is that a — why is that — in the first place, bankruptcy was a civil proceeding, wasn’t it?

Ralph S. Spritzer:

It was.

Felix Frankfurter:

And he could have been called, couldn’t he?

Ralph S. Spritzer:

Yes.

I — I concede that in a civil proceeding, one who is testifying under compulsion certainly doesn’t weigh a privilege by answering some questions.

He can be taken away of privilege only if he testifies fully as to — as to his transaction.

Felix Frankfurter:

But are you saying that if she hasn’t been called — I’m — frankly, I doubt that the reasons — the — the argument that’s derived from Arndstein seems to me funny almost.

The conclusion is funny.

Maybe the Constitution compels some funny conclusions.

But are you saying that if she had been called by the Government in the first instance, as she could have been —

Ralph S. Spritzer:

She was.

Felix Frankfurter:

— I mean if she was —

Ralph S. Spritzer:

And did.

Felix Frankfurter:

— that she was that — but where — then where does it differ from Arndstein opinion?

Ralph S. Spritzer:

Well, her — her claim of privilege was honored when she was being called as the Government’s witness.

Felix Frankfurter:

Well —

Ralph S. Spritzer:

That’s — I think that is the — the whole point, Your Honor.

Under the civil — under the Rules of Civil Procedure, she could be called in a civil case as an adverse party to the stand and she was called.

Now, that point, government counsel begins to question her.

I say she has to answer until the point is reached when she is asked a question which is incriminatory.

Felix Frankfurter:

What you say is that the matter had stopped there, if she had had just — if — if her testimony as a witness for the Government that’s been the end of the matter, had been the end of the matter.

Ralph S. Spritzer:

Certainly.

Felix Frankfurter:

But then —

Ralph S. Spritzer:

Her — her claim of privilege was sustained every time it was asserted when she a witness for the Government.

She was not content to let matters rest there.

Her counsel said he was not going to cross-examine her.

There is no suggestion that he was going to cross-examine her later.

Page 19, he says, “I won’t cross-examine — cross-examine the witness at this point.

I will put her on, on direct.”

Felix Frankfurter:

And you say that if the matter had stopped there, then it would have been straight to Arndstein?

He hadn’t put it on.

Is that right?

Ralph S. Spritzer:

Well, I don’t even think the Arndstein problem arose on her direct examination by the Government because I don’t think she made any partial disclosures at all which any disclosure which could said — be said to be incriminatory on — on direct examination by the Government.

There wouldn’t have been any case than a question of refusal, any question of waiver or privilege, any question of contempt if she had been content to rest — to let matters rest as they stood after she had been called as a compelled or involuntary witness.

Earl Warren:

Assume, Mr. Spritzer, that he had cross-examined her at that particular time —

Ralph S. Spritzer:

Yes sir.

Earl Warren:

— and then the governor — the Government had — had re-examined her on redirect examination and she claimed the privilege, would she then still be a compelled witness in your judgment?

Ralph S. Spritzer:

Yes.

He could have —

Earl Warren:

But the sole difference then is premised upon the fact that he didn’t cross-examined her as to this matter but brought it out in direct examination of her as his own witness.

Ralph S. Spritzer:

Well, I’m not suggesting that it rest upon any technical kind of difference.

I assume that if she had been cross-examined by her own counsel and cross-examination had been within the scope of the direct, then there would have been no greater freedom on the part of the Government on redirect than there had been on direct.

What I’m saying is when the witness took the stand in her own behalf and testified about the whole case, about matters which she had refused to talk about when she was a government witness that then, she could no longer resume the field of the privilege and say, “I’m going to talk about subject X and Y when my own counsel asks me the questions but not when government counsel does.”

I say that she could not volunteer the witness and make a broad statement, “I have never been a member of any organization which taught or advocated the overthrow of the Government,” and then refuse on cross-examination to answer the question, “Have you ever been a member of the Communist Party?”

Felix Frankfurter:

I’m still troubled by Arndstein because if one thing for Arndstein to refuse the filed schedules, and then he cited the failure to file and then having reply, “I can’t file them because they tend to incriminate.”

Felix Frankfurter:

And what actually took place in that (Inaudible) a man filed and files untruthfully and he can’t be asked about the untruthfulness of what he thought.

Ralph S. Spritzer:

Well, I think that there —

Felix Frankfurter:

But (Voice Overlap) your own troubles and you’re not here to defend it except to the extent that you differentiate them.

Ralph S. Spritzer:

Well, I think there, there was the element that the further inquiries made of Arndstein would have compelled additional disclosures and it was not at all clear that the initial disclosures constituted admission of facts which themselves would make out of pride.

Hugo L. Black:

Suppose when the Government attended for the cause — cross-examination in the beginning, defendant’s counsel has said — said what he did, “I would postpone my cross or my cross-examinations with this witness until later, and then he had taken up the cross-examination —

Ralph S. Spritzer:

Well, if —

Hugo L. Black:

— what about that?

Ralph S. Spritzer:

— if Mrs. Brown were first called as the government witness and then she had been cross-examined, I think if, on cross-examination, her counsel had gone outside the scope of the direct and asked her to testify as to new matter, then I think that the Government could cross-examine as to such new matter and if there would have been a waiver as to those transactions.

Charles E. Whittaker:

On redirect.

Ralph S. Spritzer:

On redirect.

Hugo L. Black:

Even though she had been brought in against her will in the beginning?

Ralph S. Spritzer:

Well, I’m saying if her own counsel took her outside the scope of direct and introduced new matter on cross, then, I think, the matter would be in the same posture as if she had been called as her own witness and that manner had been brought out.

I’m not suggesting that if the cross-examination were complying to the scope of the direct that the Government’s position to elicit information would many way be enlarged.

Hugo L. Black:

Well, the scope of it was in the beginning that the Government was trying to get something to show certain fact (Inaudible) —

Ralph S. Spritzer:

Certainly.

Hugo L. Black:

— he called her and held at the state to stand on that basis.

And naturally, she had to say something (Inaudible) and you say that when she did say something, that owned up the Government to cross-examine —

Ralph S. Spritzer:

Now, Your — let me —

Hugo L. Black:

— that that made a voluntary witness.

Ralph S. Spritzer:

On direct examination, You Honor, the Government asked her about her affiliations and activities since the basis of this denaturalization sue was a claim of fraud and procuring naturalization, fraud in that she was alleged to have denied in her application for naturalization, she was alleged to have made false denial with her membership in the Communist Party.

The Government asked her on direct examination whether before 1946, which was the date of her naturalization, she had, in fact, been a member of the Communist Party.

She said, “No, I have not been.”

The Government then went on and counsel asked her questions designed to show if affirmative answers were given, they would have been designed to show that there was an inconsistency because certainly, she’d been a regular member or such with the implication of the questions in subsequent areas at the time.

She said, “I will not answer any questions which relate to the period after 1946.

I claim my privilege.”

The Court ruled that that was a proper claim of the privilege.

The net result was that on direct examination by the Government, Mrs. Brown testified that before 1946, her conduct had been entirely consistent with her naturalization application.

She also testified — on examination by the Government, she also stated on examination by the Government that she would not say anything about matters post-1946.

That’s the posture of it when she is put on the stand as a witness in her own behalf.

Her own counsel then asks her a series of questions, “Did you ever believed in it?

Ralph S. Spritzer:

Do you now?

Were you ever a member of that?

Are you now?”

Not limited to the period before 1946.

Those questions are — series of them is set out in the Court of Appeals’ opinion on pages 43 in the record.

Hugo L. Black:

Did he ask any questions — did he ask any questions that the Government — refuse to answer the Government?

Ralph S. Spritzer:

He asked questions which covered the same subject matter.

Hugo L. Black:

No, but did he ask —

Ralph S. Spritzer:

I —

Hugo L. Black:

— those questions whether she’s been a member during the period the Government has asked and she declined to answer?

Ralph S. Spritzer:

Yes.

Their questions are on 43, Your Honor, of the record.

One of them is, “To your knowledge, did you ever belong to any organization that taught or advocated anarchy or the overthrow of the existing government —

Hugo L. Black:

Had the Government asked her that?

Ralph S. Spritzer:

— in this country?”

Hugo L. Black:

Had the Government asked her that and that she declined it?

Ralph S. Spritzer:

Yes.

She had declined to answer as to her membership, belief, activities after 1946.

She then got up and covered the post-1946 event in her direct making as to — in answer to all questions, general exculpatory statements.

Then when the cross-examination comes, she resumes the position originally taken that she’s not going to answer any questions put by government counsel which relate to the post-1946 period.

Now, there can be, I submit, no such privilege.

The privilege is a privilege to remain silent.

It is not, we submit, a privilege to tell a one-sided version of particular events.

Now, I would like to take just a moment while still on the subject of waiver and privilege and before going on to the question of contempt and contempt sanctions to say that we do not read the District Court’s opinion as stating merely that there was a waiver by taking stand.

That opinion appears in the record at pages 38 to 40.

And the Court begins its opinion on the contempt matter, and I’m looking at the first paragraph of the opinion on page 38.

It begins by saying that she waived the right to claim any privileges under the Fifth Amendment by reason of having testified as a witness in her own behalf.

I go on to page 39 in the bottom of that page and the Court points out, “The defendant was then examined by her own counsel at length with respect to the subject of this suit.

And at the end of such direct examination, the District Attorney asked certain relevant and material questions with respect to these proceedings.”

So I say that there is emphasis at various points in the opinion on the fact that she testified fully and not merely on the fact that she took the stand.

Ralph S. Spritzer:

It’s perfectly true that on page 40, the Court goes on and says, “The Court is of the opinion that the defendant, in taking the stand as a witness in her own behalf, waived the right,” etcetera.

Now, reading the several expressions together, I wouldn’t say that this opinion constitutes a holding that merely taking the oath is a waiver.

I think that we need rest on no more than the proposition that the Court of Appeals rested on which is that certainly, a witness can’t testify voluntarily as a witness in her own behalf as to particular matters and then shut off cross-examination as to those things.

Now, these are points —

Hugo L. Black:

Are these the only questions that you say — that you referred me to in which you claim that she refused to answer questions that she — concerning a subject that she had testified to voluntarily?

Ralph S. Spritzer:

The questions are referred to Your Honor on page 43 —

Felix Frankfurter:

And 4.

Ralph S. Spritzer:

— and 4 —

Felix Frankfurter:

Are those the only ones — are those the only ones that you claim somewhat in that page?

Ralph S. Spritzer:

Well, I — I don’t think they’re the only one.

But I certainly think they’re — they’re the more important ones.

They’re the ones the Court —

Hugo L. Black:

You have —

Ralph S. Spritzer:

— quoted in its opinion.

Hugo L. Black:

— you have nothing stronger than that.

Ralph S. Spritzer:

No, I’m — I’m — the Government, we would stand on that.

Yes, I’m not saying there’s anymore extreme or serious in other questions.

I’m merely saying that I don’t know the complete list.

The Court of Appeals singled out some of the questions she answered on her own counsels for that examination and then referred some of the questions that she refused to answer on cross.

And I don’t — I think there are some other cites.

I don’t think there — they add anything.

Turning from the questions then which go to the nature of a privilege and what constitutes a waive or privilege to the questions which go to the issue was the contempt power properly invoked and is the sentence for contempt and authorized sentence.

Now, of course, we are relying here, as the Court has heard, on the proposition that this was a contempt under the third subparagraph of Section 401.

The Court — the District Court that is made a point at each occasion when Mrs. Brown refused to answer the questions on cross-examination of directing her to do so.

And his ultimate holding as to contempt rested upon her refusal to obey that direction.

I might say in passing that the District Judge heard legal argument as to the claim that there had been no waiver of privilege.

He adjourned to the Court after hearing that legal argument overnight.

He came back the next day, and he ruled against the petitioner’s claim that she would still invoke the privilege.

He cautioned her that she would be obliged to answer and directed her to do so.

It was only after these preliminary set further inquiry that he concluded that there had been a contempt or a series of contempt to which he treated as one.

Felix Frankfurter:

What is your observation on the Court’s statement, “Of course, this is a contempt that occurred within the presence of the Court.”

Ralph S. Spritzer:

I think the judge —

Felix Frankfurter:

“Of course” particularly, not only this is a — but the “of course”.

What is the point of all that?

Ralph S. Spritzer:

The point of it is that he can proceed as he did to determine the issue of contempt immediately under Rule 42 (a).

Without notice.

Ralph S. Spritzer:

Without notice and hearing as required by Rule 42 (b).

Rule 42 (a) says that it occurs in the presence — in the face of the Court, then the judge may dispose of it then and there.

42 (b) says if it occurs not in the face of the Court, that the disposition shall be on notice from hearing.

And that’s obviously his concern.

He’s saying, “Of course, it’s in the face of the Court, therefore, I’m going to dispose of it this morning along with the rest of the case.”

Now, this had been contempt by a willful disobedience of a kind which took place outside the Court and he had to ascertain —

Felix Frankfurter:

He couldn’t do it.

Ralph S. Spritzer:

— whether the disobedience had in fact occurred.

He’d have to do it on notice from hearing and then hear in the evidence that the parties might wish to present on the issue of disposition.

Felix Frankfurter:

All those considerations are equally relevant whether it’s (1) or (3) —

Ralph S. Spritzer:

No.

Felix Frankfurter:

— one says — one says in the presence of the Court and — and the other says has a different category.

Ralph S. Spritzer:

Well, I think, presence in the Court may have relevance for one or two purposes.

One purpose is the merely procedural one whether you proceed summarily or on notice from hearing.

Now, presence of the Court — presence in the Court may also be relevant as to whether substantively, it is a contempt because misbehavior of certain kinds is a contempt if committed in the presence of the Court but not a contempt if committed outside the Court.

I opposed if a lawyer says, “I think judge so and so is a bad judge,” and he says it in the courtroom, it’s clearly a contempt that he thinks — says he is a bad judge and he says it on the street corner it’s not a contempt.

And that’s the significance at present in the subsequent case then.

William J. Brennan, Jr.:

Well, Mr. Spritzer, if obstruction is an element, assume —

Ralph S. Spritzer:

I’m sorry, I didn’t catch that.

William J. Brennan, Jr.:

Assume obstruction is an element of a contempt in the presence of the Court and that disobedience of this kind of an order, his misbehavior on the presence of the Court, what’s your comment whether there is obstruction here?

Ralph S. Spritzer:

Well, I think that disobedience of any lawful order of the Court is, by definition, obstructive.

And I think that’s why subparagraph (3) doesn’t speak about obstruction.

Subparagraph (1) deals with a quite distinct matter.

It doesn’t deal with the matter of disobedience, it’s talking about misbehavior.

Ralph S. Spritzer:

It may be making a loud noise.

It — it may be a — using offensive language, may be any number of things.

It’s not disobedience to the specific order but it’s misbehavior which may take a hundred different forms.

As to that, the statutes says specifically for obvious reasons, it has to be committed in the presence of the Court.

William J. Brennan, Jr.:

Well, I’m — I’m asking you would assume —

Ralph S. Spritzer:

Yes, sir.

William J. Brennan, Jr.:

— that disobedience of these directions to answer, we were to conclude is misbehavior in the presence of the Court.

Assume that.

I know that’s not —

Ralph S. Spritzer:

Assume that is also that.

Yes.

William J. Brennan, Jr.:

I know that’s not the Government’s position, that’s (Inaudible)

Ralph S. Spritzer:

Yes, sir.

William J. Brennan, Jr.:

But if it is, what’s your comment whether obstruction appears here?

Ralph S. Spritzer:

I would say that there is an obstruction in any instance in which there is a refusal to comply with a lawful order because I think that an order, in order to be lawful or ruling, in order to be a lawful ruling, must be one which has some demonstrable purpose in terms of the exercise of the Court’s jurisdiction and function.

Otherwise, it’s not a lawful ruling.

The Court can’t make frivolous rule.

William J. Brennan, Jr.:

The fact — the fact is in this instance though, I gather, that the trial judge did disregard this lady’s direct testimony and enter judgment for the Government, the judgment that the Government thought.

So that in that sense, the object of the proceeding was not (Inaudible)

Ralph S. Spritzer:

Well, I would draw an — a distinction and I think it is an extremely important one not only for this case but for many others, perhaps, a distinction between what may be critically damaging and what is obstructive to the judicial process.

Now, I think it would be a fantastic result if in the case of a witnesses refusing to be sworn or to testify, the question of whether that was an obstruction or a disobedience within the contempt statute had be — had to be determined by evaluating how the case might have come out if, in fact, he had testified.

I don’t think it’s any less a contempt for a witness to refuse to testify in a situation in which it ultimately appears by hindsight that it didn’t affect the result, then it is in the case in which it may have affected the result.

William J. Brennan, Jr.:

As I — as I get it, then your answer is that the obstruction that’s contemplated as obstruction to the administration of justice not necessarily an obstruction in a sense of a frustration in a given result in a particular case.

Ralph S. Spritzer:

That’s right.

Certainly, the Government here — the result here was not affected as — as matters proved because the — the judgment went against this petitioner.

But I — as I say, I don’t think that you can evaluate the contentious nature of a refusal to obey a court order or refusal to be sworn or refusal to testify by attempting the impossible, in many situations, to estimate what bearing or effect it might have had on the ultimate outcome of the case.

Hugo L. Black:

Why isn’t the argument you’ve just made as to the automatic obstruction of justice just as applicable in the case of a perjury?

I’ve just read the charge against Michael opinion and I see — it seems to me they made about the argument you’re making.

Ralph S. Spritzer:

Well, I think in a broad sense, certainly, every case of perjury is also an obstruction.

I think Your Honor said that in Michael, as I recall rightly.

Ralph S. Spritzer:

Now, I think that the important difference between Hudgings and Michael and this case is that the Court felt that there would be serious consequences and for various reasons in permitting a case of perjury to be treated by the contempt process rather than by the criminal law process which was applicable to it.

The Court pointed to several factors as I recall in Hudgings and Michael.

One of them was that if a judge could threaten a witness and perhaps, “threaten” is — is an unfortunate word here, a judge could take a position which would seem to the witness, to threaten the witness with liability and contempt.

If the witness failed to satisfy the judge’s notions of what proof was, then there would be a great danger to the Court stated in Hudgings that the contempt power could be used to shape the testimony of — of witnesses.

A judge might have a — a strong opinion as to where the proof lays.

And if he were permitted to say to a witness, “I think you’re — you’re lying about this, and I may hold you in contempt unless you convince me that you’re going to tell the truth,” there would be an instrument for serious perversion of justice this Court said in Hudgings.

Of course, there are other good reasons for not treating perjury by other contempt process.

Perjury is certainly a — an offense which is peculiarly difficult to prove than has in its serious possibilities for miscarriage of justice in view of the fact that people’s versions and memories as to events may differ so widely.

It’s for that reason that this Court has insisted on the application of the so-called two-witness rule in perjury cases.

Finally, I think, there is a considerable reluctance on the part of the Court to — and has been, to permit or encourage use of the contempt process where the criminal law is clearly applicable and offers a wholly satisfactory remedy.

Hugo L. Black:

Is a criminal law not clearly applicable here?

Ralph S. Spritzer:

I think if this is a contempt, it’s not a — if this is not a contempt, it’s not any offense at all.

Hugo L. Black:

Well, contempt is statute to the crime, isn’t it?

Ralph S. Spritzer:

Well, I’m using —

Hugo L. Black:

And would the statute — with the statute, I’m not talking about, I’m talking about detention.

Ralph S. Spritzer:

The statute defines several classes of contempt of which this is one.

I’m talking about — I’m drawing a distinction.

Hugo L. Black:

Well, they could — they — they could be tried like any other person before a jury with indictment, couldn’t it, under the statute?

Ralph S. Spritzer:

I am saying, Your Honor, that so far as I understand, the only charge which could be made against somebody who refuses, like Mrs. Brown did, to testify, would be a charge of contempt.

Hugo L. Black:

But when they tried him with contempt of Congress, is there any difference between that kind of trial and this kind of trial?

Ralph S. Spritzer:

That’s the trial —

Hugo L. Black:

Under the statute.

Ralph S. Spritzer:

I think under the statute that is — that may be a trial in which one can demand a jury, the contempt of Congress provision.

I’m —

Hugo L. Black:

Well, what I mean is —

Felix Frankfurter:

They’re quite.

Hugo L. Black:

— there any difference in the way?

Ralph S. Spritzer:

Pardon?

Felix Frankfurter:

I suppose they’re quite in view of the (Inaudible)

Ralph S. Spritzer:

Yes, yes.

Hugo L. Black:

Is there any difference in the way the two trials have to function?

Ralph S. Spritzer:

Is there any difference between a trial —

Hugo L. Black:

Yes.

Ralph S. Spritzer:

— as to contempt of Congress?

Hugo L. Black:

(Voice Overlap) Congress for failure to answer question for congressional committee on the Court.

The point I was getting at was you said it in perjury, that’s a clear way to try the person in an ordinary criminal trial, and why isn’t that here?

Ralph S. Spritzer:

I’m — I was saying, Your Honor, that there is a specific statute setting forth a technical crime, a common law crime of perjury and if that ought not be used, as I try to think to be the burden of this Court’s opinion in Hudgings and Michael that statute should be utilized in all cases falling within it in such acts even though they may also be obstructions of the Court should not be dealt with by the contempt power.

Now, I take it that both in Hudgings and Michael, it appears to me that the Court, itself, is clear on the proposition that where as perjury should be prosecuted under the perjury statute that a refusal to testify or a refusal to be sworn as a witness would be punishable as a contempt.

There’s been a great deal of discussion about Hudgings.

I’d like to take the time, if I may, to read two sentences from that opinion.

I’m reading from page 382 of the report, Your Honor, in the middle of the page, “That the contumacious refusal of a witness to testify may so directly obstruct a court in the performance of its duty as to justify punishment for contempt is so well settled as to need only statement.”

And in the next sentence, “Despite some confusion caused by certain ambiguous forms of expression used by the court below in dealing with the subject, it is indisputable that the punishment for contempt was imposed solely because of the opinion of the Court that the witness was willfully refusing to testify truthfully, that is was committing perjury.”

Now, I take it that Hudgings means that a refusal to testify as a contempt but that the Court may not use the contempt power merely because it’s convinced that a witness is testifying untruthfully and say, “Now, that’s obstructing the judicial process.”

I take Hudgings to mean that in the latter case, the Court must refer the matter to the United States Attorney and to judge an indictment for perjury?

Hugo L. Black:

Well, then, now, I would take it a little bit different as to 100 to 383.

I don’t get what you do from that in the first place, “An — an obstruction to the performance of judicial duty, an obstruction,” he said back there, “that contumacious refusal could be an obstruction resulting from an act done in the presence of the Court is, then, the characteristic upon which the power to punish for contempt must rest.

This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted.

A principle which applied to the — apply to the subject in hand that is perjury exacts that in order to punish perjury in the presence of the Court as a contempt, there must be added to the essential elements of perjury under the general law the further element of obstruction to the Court in the performance of its duty.”

Do you gather that he’s saying there that every — every time without regard to the materiality of anything or the importance of anything that you can always cite a man for contempt summarily without showing that there’s something actually done to the Court of an important nature and an important way?

Ralph S. Spritzer:

I would — I would have to answer that question.

I think first excluding the words without relevance or importance or materiality because I — I’m not suggesting that an order which has no basis to the violation of such an order is a contempt.

I think the statute requires, Section 401 requires that it be a lawful order of the Court.

I don’t think in order to give testimony which obviously has no relation to the proceeding with be beyond attack.

Hugo L. Black:

What about testimonies that may or may not be admissible just discretionary with the judge?He leave it in or take it out, it won’t hurt him.

Ralph S. Spritzer:

I think there’s a duty to respect the judge’s order.

Hugo L. Black:

Do you think that would be an obstruction automatically?

Ralph S. Spritzer:

Yes, sir.

I think there has to be someone in the courtroom who has the power of making a ruling.

And if that ruling, if the judicial process is to go on has to has certain importance to it.

Felix Frankfurter:

Mr. Spritzer, let me tell you my difficulty, indeed great disability about this case, not this problem that you’ve been discussing.

Felix Frankfurter:

I, of course, agree that subsection (1), misbehavior in the presence of the Court include and may even normally apply to conduct that could not be brought under subsection — paragraph (3).

Ralph S. Spritzer:

Yes, sir.

Felix Frankfurter:

If you know it.

I do not think it, at all, follows that because it may be within the description of 3, it is excluded from one.

And I vouched in — for that purpose the citation in Hudgings.

Let me read you of Judge Howe said in — in citing William F. Hudgings for contempt.

He set forth the facts and he had been duly sworn, did vocally refuse to — to answer certain questions truthfully and fully and likewise then and there, falsely square, whereas the said William F. Hudgings in so answers, in so answering and so refusing to answer was guilty of a contempt of this Court and of the authority of this Court by misbehavior in his presence.

Now, that recital therefore, etcetera, state exactly what I put namely that although it may be within the descriptive category of 3, it is not excluded from one as a misbehavior in the presence and therefore, the requirement of Hudgings is something more than the external objective context is required before you didn’t find it as a contempt.

And for that, I read what he said — his wife said as to — “An obstruction to the performance of judicial duty resulting from an act done in the presence of the Court.”

Certainly, that’s said.

But it is true.

But the mistake if we think evident since it’s either overlooks or misconceived, the essential characteristic of the obstructive tendency underlying the contempt power form the strictest attribute and necessary inherent obstructive effect you call swearing.

Now, what I put to you is this.

Why should there be such a requirement for an establishment of misbehavior of Hudgings by answering and refusing to answer for whatever reason and not be within Section 1 when the refusal to answer was ex-hypothesized an honest belief that the Fifth Amendment protects.

And we’ve been discussing here and you’ve not dismissed this privilege the wave of the problem so that we have got the case before us in which a court may find that there was at least an honest legal question — I don’t mean an honest, not a frivolous legal question as to whether she, in her opinion, could refuse which doesn’t mean an order can’t be given but it doesn’t follow that therefore she must go to jail.

Ralph S. Spritzer:

No.

And jail, of course, isn’t the only punishment —

Felix Frankfurter:

Well —

Ralph S. Spritzer:

(Inaudible)

Felix Frankfurter:

— I know but we can’t —

Ralph S. Spritzer:

— to the contempt power.

Felix Frankfurter:

— we haven’t got a statute in which — which particularizes the sentence that is the — that is implied because I — I go with you and what you said about — generally about the discretionary power.

Ralph S. Spritzer:

Your Honor, we’ve listed at page 7, and this is in response, I think, to your — about your question.

Page 7 of our supplementary brief, some 10 cases in which there was a claim of privilege in which the District Court ruled that the claim was ill taken in which, as a result, the person claiming the privilege was held in contempt.

Now, those cases run the — the ones with selected, I think, but probably the most important cases on questions of waiver or privilege.

They run from Brown against Walker down to the recent Ullmann immunity statute case.

Now, in every one of those cases, the way in which the validity of the claim of privilege was tested when it was overruled by the Court was by the person being held in contempt and taking an appeal.

I certainly don’t think it will be said that in those 10 cases, most of which were decided by divided courts that the claim of privilege was wholly unsubstantial.

There were serious questions.

I think much more serious questions than are raised by the claim in this case.

Ralph S. Spritzer:

I say the historical way of raising the question of a claim of privilege once that it has been denied has been by appeal from a sentence for contempt.

Now, it seems to me fundamental that if a court is to function, that it’s ruling has to have a certain amount of force and then person who is going to challenge the validity of a judge’s ruling does so at his peril.

William J. Brennan, Jr.:

Would you say that, Mr. Spritzer, if the direction would answer what everyone could agree was wholly irrelevant question?

Ralph S. Spritzer:

No, sir.

I think the validity of any citation and sentence for contempt rest upon it being a lawful order ruling man of the Court.

Lawful is written into 401 (3).

William J. Brennan, Jr.:

So that is always open to one convicted of contempt not withstanding his refusal to obey or order to answer an irrelevant question —

Ralph S. Spritzer:

Yes, and what I —

William J. Brennan, Jr.:

— and have that conviction upset if he can establish that it wasn’t irrelevant.

Ralph S. Spritzer:

Yes.

What I am saying is that he — if he is going to say “I will follow your ruling, judge, because I think you’re wrong,” I’d say he runs the risk that on appeal, the judge will be found right and that he will be found wrong.

Felix Frankfurter:

Mr. Spritzer, may I say this that I think I always do say.

I told you how difficulty I have that I am unconscious of this problem, what — what ways didn’t he — this case.

I — never mind that.

Indeed, he was.

But I haven’t taken in the full implication of Hudgings.

I didn’t study the record.

I didn’t study the record which not be in any other claim that he was perjurious.

His testimony was a perjury but also a refusal to answer.

I haven’t realized the decisions in the lower courts preceded Hudgings where as you well know, that was rejected.

Hudgings within the way conducted so far as the federal courts are concerned, at all federal courts at all events.

But I’m profoundly troubled by — unless you pocket, unless you say that only where the obstructions of justice may be the basis of a perjury indictment, you must go for that, otherwise, it’s an order.

And I am not as troubled as you are that this would mean the Court couldn’t function because I’m not suggesting that Hudgings says under no circumstances may refusal to answer be of contempt.

I don’t think that’s Hudgings.

But Hudgings says something, there must be something extra and here, is an ingredient, namely, an honest witness, honestly has not a fanciful feeling that is protecting something which if he’s right, is important to protect.

Ralph S. Spritzer:

Well —

Felix Frankfurter:

But that those instances, in other words, it wouldn’t shut off the power of a court to go on and attend to the trial on the theory of everybody who refuses to answer has a good reason for refusing.

Ralph S. Spritzer:

I would interpret Hudgings, Your Honor, as meaning that the reason there has to be something extra in the case in which a witness is testifying untruthfully that the reason for that is that because — is because there would be grave danger in punishing the ordinary offense of perjury through the contempt power.

Now, I don’t read Michael as being different in that respect because the Court in its Michael’s opinion distinguished a case known as United States against Appel, a District Court’s decision by Judge Learned Hand.

Now, Appel was distinguished in Michael, and I’m quoting this Court’s opinion in distinguishing it because there, that is in Appel, the Court thought that the testimony of Appel was on its mere face and without inquiry collaterally not a bona fide effort to answer the question at all.

Ralph S. Spritzer:

In other words, I would take it from Hudgings and Michael that where their refusal is a refusal to answer at all or a refusal to be sworn that that is a contempt and indeed, reachable only by the contempt process.

Felix Frankfurter:

Judge Hand to Appel, as I remember it, he used the phrase about making a mockery of the Court, what was the phrase?

He used some phrase of playing tricks with the Court.

Ralph S. Spritzer:

Well, Judge Hand —

Felix Frankfurter:

Doesn’t he say something like that?

Ralph S. Spritzer:

Yes.

That — it’s interesting in what connection he said it.

He said that now, perfectly clear that if the contempt of the refusal is to answer at all.

And then he went on to say that the Court ought not to be put off by a transparent sham —

Felix Frankfurter:

Yes.

Ralph S. Spritzer:

— where there is an answer —

Felix Frankfurter:

Yes.

Ralph S. Spritzer:

— but it’s obviously —

Felix Frankfurter:

Yes.

Ralph S. Spritzer:

— not responsive.

Felix Frankfurter:

Yes.

Ralph S. Spritzer:

I think you get into a very troubled scenario when you try to distinguish between an answer which is no answer or an answer which is so equivocal that you don’t believe that it’s responsive and an answer which may be truthful.

Perhaps it’s wise where there is some attempt to answer, to insist that the proceeding be by perjury.

I would say to the Court that the only way in which there can be any sanction against a person who doesn’t answer at all is by the contempt power.

And I would think it’s astonishing in the light of the fact that the contempt power has always been utilized when a witness has refused to testify in court, before an administrative agency, before a legislative body if there would be any doubt of the application of the contempt power to every situation in which a witness, without justification, refuses to answer.

I agree that the question has to be relevant.

I agree that the course has no contempt if the matter was privilege.

But I think when you decide, if you should, that the questions posed on cross-examination were relevant and that there was no privilege to refuse to answer, I think you’ve decided that the ingredients of Section 401 (3) has been satisfied.

Hugo L. Black:

I may say in reference to Michael that I do not agree that the sentence (Inaudible) as I have read the opinion —

Ralph S. Spritzer:

Yes.

Hugo L. Black:

— as a proof in that case (Inaudible) if he’s approving it or disapproving, it was later signed because there were different circumstances that is certainly does not leave the impression on me if I (Inaudible) it was intended to approve it or disapprove.

Ralph S. Spritzer:

No, I meant to cite it to the proposition that the Court distinguished that how and certainly, therefore, I would take it deciding anything more than the matter of contempt by perjury.

It wasn’t purporting to decide certainly since Appel was distinguished the question of contempt by refusal to respond.

Felix Frankfurter:

Well, in Hudgings, the Court approved Appel, that is it said that illustrative of the principle of the delaying down —

Ralph S. Spritzer:

Yes.

Ralph S. Spritzer:

It (Voice Overlap) —

Felix Frankfurter:

— so there must be a further element of obstruction in the performance of the duty.

Isn’t that true, they said that?

As —

Hugo L. Black:

(Voice Overlap) —

Felix Frankfurter:

— illustrative (Inaudible) United States v.Appel.

Ralph S. Spritzer:

I think the Court is saying that there must be something special where the offense is the giving of untruthful testimony to induce the Court to treat it as a contempt rather than as a perjury offense.

I do not think it follows from that, Your Honor, that the Government need to establish anymore where there is the refusal to answer or a refusal to testify than that the order to testify was the lawful order.

Felix Frankfurter:

I have — I have that great difficulty in wondering what was in suit that was quite bind when he said there must be something additional perjury.

I mean, a fellow just apply for — in order to protect himself or somebody who wants to protect (Voice Overlap) —

Ralph S. Spritzer:

Well —

Felix Frankfurter:

— Hudgings.

Ralph S. Spritzer:

— if Hudgings and Michael are — create that difficulty or sense of difficulty, it seems to me the answer maybe to go through the whole course of cases which didn’t involve perjury but involve refusals to be sworn or refusals to testify.

Now, I know no case in which it is suggesting even remotely that in the case of a refusal to testify, there is a duty to examine anymore than the question whether the order to testify was a lawful order.

It never been a suggestion that you are to consider or that the District Court is to consider how valuable the testimony would have been had it been given —

Felix Frankfurter:

Well, I don’t (Voice Overlap) —

Ralph S. Spritzer:

— or how obstructive the effect might have been.

Your — your argument, as I understand it, makes it immaterial really in your view as to whether this is regarded as a subdivision (1) or a subdivision (3) proceeding because if you — is this — is this your position that if you regard subdivision (3) as being — as having force independently of obstruction, why, that’s the end of the matter, and if you choose to regard obstruction as an element common to all sections of the statute, you got to build in an effective obstruction by the very definition of what’s contained in — in subdivision (3), is that — is that it?

Ralph S. Spritzer:

I would say, yes, that is it.

I would say that any violation of the lawful order is — is per se obstructive if you feel that you need obstruction.

Felix Frankfurter:

And then —

Ralph S. Spritzer:

It seems to me —

Felix Frankfurter:

— you had to go further and say that where a perjury is involved, that’s an exception, isn’t that right?

Ralph S. Spritzer:

Where perjury is involved, it is under the Court’s holding to be dealt with as perjury unless there are exceptional elements which also make it contempt.

I would think that, logically, when —

Hugo L. Black:

Do you conceive of some in case of —

Ralph S. Spritzer:

Yes, I can conceive of perjurious testimony also being offensive to the judge containing offensive remarks.

Hugo L. Black:

That would be because it’s perjurious, wouldn’t it?

Ralph S. Spritzer:

No.

I — I think they would have to be — it has to be combined with another element.

Hugo L. Black:

In other words, it have to be something else on which to hang it.

Ralph S. Spritzer:

That’s right.

I don’t think you treat perjury as such as a contempt.

I take that to be the holding of Hudgings and Michael.

A final word about the subparagraphs of the contempt statute, I don’t see any reason why one should consider whether it might also be included under subparagraph (1) because I think that it is defined.

The kind of offense we’re dealing with here is defined by subparagraph (3) and whether it might also be included in something else, I think it ought to be dealt with under the heading which specifically covers it (Voice Overlap) —

William J. Brennan, Jr.:

Mr. Spritzer, are you going to say a word on the verdict of the sentence?

Ralph S. Spritzer:

Yes, sir.

I shall.

I think that some of the elements which were referred to earlier whether the — it appears to the Court that the claim may have been in good faith.

Well, I don’t think it’s a defense on the issue was there a contempt.

I think it is a factor which may be considered in determining the reasonableness of the sentence.

I would say here that the circumstances that the reason that the petitioner adopted this course of conduct, I find rather difficult to explain whether it was, on the one hand, a complete misapprehension or on the other, a — a striving for some fault, some conceived advantage, I — I don’t know.

I think the sentence was a severe one in the circumstances.

I don’t think that it’s not fair to said that I think it goes beyond the range of the District Judge’s discretion.

I suppose that in a case of this kind, an estimate of the motive which may have led to this course of conduct by a witness and probably be better made by the District Judge than by anybody who — who later reads the record, I don’t know what further to say on — on the subject of the severity of the sentence.

I — I think that ultimately, these questions attend so much on personal judgment as to what would be reasonable under the circumstances.

I do agree with what was said earlier by government counsel in the Yates and what I had occasion to say yesterday and I dealt in the Green and Wilson case that I think there’s no doubt that the — that the Court has exercised in the past the power to supervise sentences in contempt cases.

I think the potentiality of abuse in contempt cases is probably greatest where the judge becomes personally involved because there’s a sense of some disrespect or to him.

There is no suggestion of that in this case.

There is no suggestion by petitioners that this judge was personally involved with the use of anything but temperate in — in his conduct of the proceeding.

I think I have — don’t have anything to add.

Earl Warren:

Mr. Crockett, you have two more minutes.

George W. Crockett, Jr.:

I have no rebuttal, Your Honor.

Earl Warren:

Very well.