Hyun v. Landon

PETITIONER:David Hyun
RESPONDENT:Herman R. Landon, District Director, Immigration and Naturalization Service
LOCATION:

DOCKET NO.: 201
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

ARGUED: Mar 05, 1956
DECIDED: Mar 26, 1956

Facts of the case

Question

  • Oral Argument – March 05, 1956 (Part 1)
  • Audio Transcription for Oral Argument – March 05, 1956 (Part 1) in Hyun v. Landon

    Audio Transcription for Oral Argument – March 05, 1956 (Part 2) in Hyun v. Landon

    Earl Warren:

    Mr. Murrish, you may proceed.

    William B. Murrish:

    In — in briefest statement, Your Honor, the position of the petitioner is that as a matter of due process derived not from deportation law because there is no deportation law on the point, but derived from three areas which we feel in principle are parallel and controlling.

    Firstly, criminal law and due process criminal law, and secondly, insanity proceedings, and thirdly, asexualization operations.

    We find in the law a requirement by due process that there be accorded in all these fields where liberty, body, or life is an issue, a quality of process different and distinct from the civil process which is sufficient to determine property causes between private individuals where the parties are relatively equal.

    And that where in the law, liberty or life or body hangs in balance and the — one of the parties is the Government with greatly superior resources and capacities that the public and the law, as well as the individual, requires that there be observed certain minimum basic fundamentals as a safeguard to ensure that the law shall not take life or liberty in error or carelessly but only as and where the law truly applied, specified.

    And that of the minimums which due process requires to secure a fair trial, not merely fair to the defendant, but fair in the sense of ensuring a just and honest judgment among those minimums and indeed very basic.

    One perhaps of the most fundamental is the minimum requirement that the judgment and trial be to the face of the person concerned and accused that he be present to be confronted by the Court, the witnesses, and the evidence.

    This —

    Hugo L. Black:

    You can’t — you can’t take deportation to the criminal case?

    William B. Murrish:

    You —

    Hugo L. Black:

    Unless the man is there.

    William B. Murrish:

    Unless the man is there except in situations of rare necessity not relevant here.

    As for example, if the witness, having once been examined in a deposition where cross-examination was either had or — or permitted as the — the preliminary hearing —

    Hugo L. Black:

    But cross-examination wouldn’t be enough of what you said (Voice Overlap) —

    William B. Murrish:

    Well, confrontation too, confrontation, where confrontation was possible like a preliminary hearing.

    Then, if the witness dies or is too ill to be able actually come to trial or is too old or as a matter of fact, I think, the case most illustrating it and I don’t, at the moment, recall and name it.

    I think it was the Mott’s case.

    If the witness is beyond the process and jurisdiction of the trying body and cannot be possibly be brought where indeed the Government must choose between a trial with confrontation — I mean between a trial without producing the witness and no trial at all because it is impossible to render it, then, in those rare situations, the law is compelled.

    As a matter of fact, that is well-discussed in the basic cases which state that in criminal law, the purpose of requiring confrontation is the very opposite of the civil law permitting depositions and that the very biggest purpose was to exclude as a matter of due process from civil — from criminal cases, the free use of depositions permitted and appropriate in civil cases.

    And that the reason why is because the fundamental requirement of fairness of confrontation and presence, which is a little more than only confrontation, which should not be forgone if it may be possible to satisfy.

    You don’t —

    Hugo L. Black:

    Does this man have an opportunity to go to Hawaii?

    William B. Murrish:

    Well, at — I’ll be as honest as I can be.

    At the time the proceedings were held in Hawaii, he was not even told that he physically could go to Hawaii and he was in jail.

    Stanley Reed:

    Before that, I understood that there was — he make —

    William B. Murrish:

    Well, that was in a different proceeding, Your Honor.

    That was not in this proceeding —

    Stanley Reed:

    Matter of deportation.

    William B. Murrish:

    — and it is not before this Court.

    It would — there was an earlier deportation proceeding under the unamended 1917 Act.

    William B. Murrish:

    And at some stage, the stage I am not familiar, at some stage, that proceeding was superseded by a new warrant under the 1950 amendment and new proceedings were instituted and it is that record only which is here —

    Stanley Reed:

    Did he — did he make any effort to go to Hawaii in this case?

    William B. Murrish:

    In this case, Your Honor, he was confined.

    Stanley Reed:

    Well, I understand that.

    William B. Murrish:

    He was physically confined.

    Stanley Reed:

    Did he make any effort to attend the deposition?

    William B. Murrish:

    He was physically confined and by that token, unable to attend except that it was later stated in the hearings.

    After the depositions had been brought back, it was stated in the record that if he would pay his own financial way and guards to secure him that the service would permit him to go to Hawaii to cross-examine.

    Felix Frankfurter:

    Does it appear —

    William B. Murrish:

    Now —

    Felix Frankfurter:

    — from the record why he was interned (Inaudible)

    William B. Murrish:

    Well, he was interned by direction of the Attorney General and it —

    Felix Frankfurter:

    I assume — I assume —

    William B. Murrish:

    I —

    Felix Frankfurter:

    — then again we’ll have to direct it.

    William B. Murrish:

    It is stated —

    Felix Frankfurter:

    Does it appear why he was not at large on bail to confine him?

    William B. Murrish:

    It is stated in the record that he was confined without bail by order of the Attorney General.

    Felix Frankfurter:

    But it doesn’t give the reasons why that action is taken.

    I mean we have no knowledge derived from the record that may be put before it, why?

    William B. Murrish:

    Why bail was denied?

    Felix Frankfurter:

    Why — why bail was denied.

    William B. Murrish:

    To my knowledge in this record, that would not appear merely the fact that it was denied.

    Hugo L. Black:

    He had — he had been on $5000 bail hadn’t he?

    What happened to that one?

    I — I noticed (Voice Overlap) —

    William B. Murrish:

    I believe, Your Honor, that that bail came later and after he is presently on bail.

    Administrative bail in the sum, I believe, of $5000 and I believe that originated, that bail originated and has been continued after these proceedings were completed and terminated and not before.

    Are you — can I ask you a question?

    William B. Murrish:

    Yes.

    I want to make sure I understand your position.

    Are you arguing that confrontation is a criminal sense?

    The sense of a criminal case is a requirement in deportation proceeding or something sure to that.

    William B. Murrish:

    Well, I am urging, Your Honor, that derived from due process, there is a requirement in criminal trial of presence of the accused at his hearing.

    Well, that’s an extractable and a crime of a case.

    William B. Murrish:

    But not derived from say the Sixth Amendment or not derived from any state constitutional right, but from due process that the accused must be present at least in a serious criminal trial and at least at the important and substantive stages.

    And it is my contention that the same due process which requires that as a safeguard of fairness in a criminal cause and which, likewise, requires that same right or presence in insanity proceedings and asexualization proceedings also requires that same right of presence in a deportation proceedings where two liberty or even life may be at stake, because they all derived from the same principle that the public as well as the private individual must be given security.

    And you do say that the criminal rule should be applied in the — in a deportation case?

    William B. Murrish:

    In the sense that due process —

    I leave that up.

    William B. Murrish:

    — requires it.

    Well, I make that distinction because originally, if you go to the criminal law, the right of presence derives, historically derives in criminal trials from common law and then in — in all of the several constitutional provisions of the States giving the right of jury trial.

    From that, they derive partly the right to be present because the very right to be tried by a jury includes the right to confront the jury.

    The right to have a public trial includes the right to be there yourself.

    The right to have counsel includes the right to consult and all of these maybe strictly criminal trial rights originally.

    And it is not upon any of those in which I lay reliance, but rather upon the requirement of federal due process which will not permit a state to change its state constitutional provisions to the extent of violating the secured right of an accused to be present at the substantive portions of his trial.

    And it’s that due process security of fair hearing rather than any strictly criminal one only upon which I rely.

    Felix Frankfurter:

    May I ask Mr. Justice Harlan’s question?

    Do I understand you to say that he did say, “We have to lay down the general rule such as this Court laid down in Johnson, observed proper aid of counsel in all for this, not that intricate (Inaudible)

    Do I understand you, permit this Court in this case, the proposition that he must lay down as a general rule of general applicability in all deportation cases that a potential deportee must be personally be present at the time that any — and the depositions are as — as a legal mode of procedure to rule out, is that your position or are you talking about

    William B. Murrish:

    I —

    Felix Frankfurter:

    — this case which may present or may not —

    William B. Murrish:

    Well —

    Felix Frankfurter:

    — present some special circumstances, which is it?

    William B. Murrish:

    Your Honor, I do indeed urge the position you just stated.

    I additionally — the position that —

    Felix Frankfurter:

    (Voice Overlap) —

    William B. Murrish:

    — well, the position that because liberty is at stake, as a general rule of due process just as generally in insanity proceedings, I believe that generally that should be the rule in deportation at least — at least where it reaches the substantive portions of the case and is not a peripheral or superfluous part only like maybe one out of 25 witnesses that might be a different situation.

    But where at least where it reaches a substantial and a material portion of the record, I believe, it should be a general rule and I believe it is particularly called for in this case because of aggravated circumstances, number one, the entire trial being thus characterized here at least the entire substantive trial.

    No single substantive witness ever appeared at the only hearing of which the alien was rendered present.

    William B. Murrish:

    In —

    Felix Frankfurter:

    How does this last, what you’re saying now, as I understand you, that is in this case, the conclusion reached by the immigration authority was practically under a trial then.

    This thing against this petition for deportation was based upon evidence given by way of deportation in Hawaii without the presence of the deportation.

    William B. Murrish:

    100 —

    Felix Frankfurter:

    (Voice Overlap) —

    William B. Murrish:

    100% except for the fact of foreign birth.

    That was the only —

    Felix Frankfurter:

    Well —

    William B. Murrish:

    — alienage was received —

    Felix Frankfurter:

    (Voice Overlap) — if you go beyond that and say that we have to take the difference how substantially.

    William B. Murrish:

    Well —

    Felix Frankfurter:

    It is like substantial or peripheral, you know they —

    William B. Murrish:

    Well —

    Felix Frankfurter:

    (Voice Overlap) difference whether you answer your argument with reference to this case is they found it in petition or whether you ask this to lay down a general proposition.

    William B. Murrish:

    Well, I take both positions, if I may, Your Honor.

    I believe, in short, that the — the right to be present is so fundamental in history behind the common law and criminal law.

    It is so basic that this Court has said, “It is as indispensable as the right of trial itself.”

    That is the language of this Court in the Diaz case.

    In another case, it has been said that it must be assumed that it — that it is indispensable to a fair defense —

    Felix Frankfurter:

    But you —

    William B. Murrish:

    — in —

    Felix Frankfurter:

    — briefly have — you can cite all of those cases and can even file a mark, file a mark because there’s no quarreling about that that in a criminal case, this is required and against that you have another character of authority and various presences that this is not a criminal case.

    So, you can’t rest on that line of — on the line of criminal cases, except you can draw from that considering which you argue of equally relevant to this man.

    William B. Murrish:

    Indeed, Your Honor, and I draw that parallel because of the reasons given in history and in the criminal law field for requiring presence.

    I call this Court’s attention to its decision, for example in Hopt against Utah where it was earnestly stated that presence is required because of a deep public concern that life not be taken in error or without a fair and a just judgment.

    That — and the reasoning there is that it would be against the law for the defendant himself to take his life except by and in accordance with law.

    He does not have the personal right and the State must see that the trial which forfeits his life has those minimums which guarantee that there will be a fair judgment and one of those minimums is that he’d be there, that judgment be to his phase.

    And I also note the circumstance that this right is — is instinctive.

    There’s an instinctive feature in — in the criminal law cases making this right jurisdictional even where it is not placed in a constitutional or in a particular statute.

    It is conceived that the trial has no power to proceed without the person to be judged, and it goes very deep into history.

    William B. Murrish:

    And I therefore say that a right so fundamental there because the reason for it is that it is indispensable to securing fairness of judgment must equally be secured where the purpose and need for fairness is comparable and parallel as it is, whether or not the proceeding been denominated civil wherever life or body or liberty are at issue because that is the reason which calls in public terms for carefulness and safeguard in judgment.

    And I — I point out that due process even in criminal law does not secure the niceties of trial which are generally secured in the criminal field.

    There is no due process right to a jury trial and there is no due process right at least by the majority decisions of this Court.

    There is no due process right to the protection of self-incrimination, no due process right to grand jury indictment, but certain very, very basic fundamentals that the trial hall not be submitted, subordinated to mob intimidation, more against them see that the judge shall not have a source of payment which gives him a motive to convict in the Tumi case or that the State shall not knowingly seek a conviction by perjured evidence as in the Munich case.

    That these and the Rochin case against violence or brutality, these cases lay down certain minimums so fundamental, I think, in the language in Rochin is a required respect for the decencies of civilized conduct.

    They are the fundamentals without breach a trial is no fair trial at all.

    Could you address yourself for a minute specifically to what happened, as to what happened when the notice of depositions was — when depositions were first brought up?

    William B. Murrish:

    Well —

    Exactly what happened?

    You said he was given notice of the time and place that was — did he ask the Government to pay his expense?

    Did he say he wanted to go over there?

    What was it?

    William B. Murrish:

    He was — at the hearing preceding, the depositions, he — a motion was simply made to take the depositions of four persons.

    He began to make — counsel began to make an objection.

    He asked, “Should I make this objection written or oral?”

    And the hearing officer said, “You can make it either way.”

    He said, “all right, I’ll make it oral,” and he began to make objections.

    He did not complete making his objections before the hearing officer made after a few side issues, made a ruling that the depositions would be ordered.

    Then in protest to this ruling —

    What — what he got — what did he gone up to that point?

    William B. Murrish:

    Up to that point, he had been interrupted in point of stating his objections and he — he asked — for example on page 116, counsel is saying, “I want first of all for the record to show that I am not finish making my motion to — my,” — it says, “My motion to objections to the taking of the depositions.

    I have not finished.”

    And then it says counsel be given an opportunity to renew his objections at the proper time and a different issue was taken up on the next page without a — an opportunity to renew it.

    The — the examining — the hearing officer at page 117 says, “The motion of the examining officer to take deposition is granted.”

    And then there is the important statement by counsel on page 118 in which he protest that he has not been able to complete his objections and he says that the examining officer has merely made a motion.

    He has not stated what he expects to obtain in those depositions.

    Has not stated why those depositions cannot be taken here in Los Angeles.

    Why the persons cannot be present, has not offered to have counsel or the respondent or both present at Government’s expense.

    No reason whatsoever offered.

    You haven’t listened to my objections to the motion and yet, you grabbed the motion to overlook my objections notwithstanding that I haven’t even finished making them.

    William B. Murrish:

    Now, there is an important circumstance connected with that in that.

    At some stage, it was suggested, I believe, in the reply brief that a written brief might have elaborated these objections.

    But on the very next page, 119, the brief is shown to consist of a brief to be submitted after the hearing is completed to the Commissioner in Washington and that the rule — the statements by the hearing officer at 119 is, the ruling still stands.

    Counsel may enlarge on his exceptions in his brief by counsel to whom, may I ask, by the hearing officer, it will go to the Commissioner of the United States Immigration and Naturalization Service and then down just a bit.

    I have already had a rule — the hearing is continued and consel and the examining officer will be notified of the date of the resumed hearing.

    Mr. Murrish, up to this point had — he made the request that he be taken or transported to Hawaii, to be (Voice Overlap) —

    William B. Murrish:

    Well, he — pardon Your Honor?

    To be present.

    William B. Murrish:

    He makes it in the statement at page 118.

    Where?

    William B. Murrish:

    The Government has made no statement why the persons cannot be present, has not offered to have counsel or the respondent or both present at Government’s expense.

    Tom C. Clark:

    Has very often, the priority in these decisions, wasn’t it?

    William B. Murrish:

    No, this is in byplay after the depositions have been ordered but before they have been taken, Your Honor.

    This at the time that the depositions are being ordered and counsel is protesting the taking of them in Hawaii and states, as I just stated.

    There has not offered to have counsel of the respondent or both present at Government’s expense.

    Stanley Reed:

    On page 7 of the Government’s brief, there’s this statement.

    At no time during this hearing, the petitioner request to be allowed to go to Honolulu for the deposition case.

    At no time did he state that he was financially unable to retain counsel at Honolulu or to send his California counsel to Hawaii.

    William B. Murrish:

    Now —

    Stanley Reed:

    Is that a correct statement of what happened?

    William B. Murrish:

    Well, it’s incorrect in import.

    It’s accurate in literal sense.

    If you read the word “this hearing,” that refers very carefully stated, that refers to the hearing of which we had just been discussing at pages 118, preceding the taking of the deposition.

    And it is true that at no time in the course of that hearing did he state, that he was financially unable to retain counsel on Honolulu or to send his California counsel to Hawaii.

    (Voice Overlap) hearing then.

    William B. Murrish:

    Well —

    So, you could put it out to us.

    William B. Murrish:

    He raised, Your Honor, the question of financial inability to pay to send himself, counsel and guards to Hawaii.

    He raised that literally at the stage of the Board of Immigration Appeals.

    He — I would say it is fair to say from the record, he did not conceive that even with capacity to pay his way there, he would be permitted to go until after the depositions had been taken because before they were taken, he was not told there was anyway he could be there.

    William B. Murrish:

    But — and when it was stated then that it would have to be at his expense, the evident plain circumstance of the inability of the petitioner to do that was simply self-apparent at that hearing and nothing, nothing was said except that no avail of the offer was made.

    But at the time of the Board of Immigration Appeals, the contention was made specifically that as an aggravated circumstance, he could not even buy a fair trial because he could not afford to send himself with guards and counsel to Hawaii.

    And the Board of Immigration Appeals, not only is that a — in my view of the law a — in itself, a timely raising of the issue because the Board and the Attorney General of the ultimate authority, but in addition, the Board of Immigration Appeals timely or not ruled upon that objection of financial inability and on the merits and ruled the financial inability or no financial inability.

    There was no right on his part to be taken there except that if he could pay his way.

    Hugo L. Black:

    What page —

    William B. Murrish:

    And —

    Hugo L. Black:

    — is that?

    William B. Murrish:

    The Board of Immigration Appeals decision, that appears in the record at page 58 and is quoted in my reply brief at page 21.

    Tom C. Clark:

    Was that the long absence in the original hearing before the examining officer?

    William B. Murrish:

    Yes, and I hadn’t quite finished my point about the original hearing, namely, that counsel was stopped in the midst of making objections at the original hearing.

    And so far as content of objections to the hearing officer, this was in large part reached by further discussion later, when the depositions were brought back to Los Angeles in terms of objections to not allowing confrontation for purposes of cross-examination.

    And in the course of those several objections, all of the contentions that the — there was a right to confer with counsel, a right to confront the witness, a right to participate in cross-examination and then nothing short of that would satisfy due process.

    All of those objections were made to the hearing officer several times in terms of supporting confrontation for cross-examination and they were always disallowed and on their merits, not on procedural or grounds of time.

    Tom C. Clark:

    Did you ever answers in hearing be transferred over to Hawaii in the term itself —

    William B. Murrish:

    No.

    Tom C. Clark:

    — of these proceedings?

    William B. Murrish:

    No.

    Tom C. Clark:

    Originally, well, as I understand you correctly on this (Inaudible) they filed deportation proceeding under 1917 Act and they then wanted to — to rather pay the motion in that case to transfer to Hawaii and the petitioner objected to that.

    Then in that same proceeding, after the 1950 Act, they amended that proceeding, constituted the proceeding under — under the 1950 Act, is that right?

    William B. Murrish:

    Well, they’re arrested him under a new warrant and began proceedings all over again.

    They arrested him under a new warrant, having nothing, no direct relation to anything preceding it and tried him under the new warrant and in that proceeding they simply proposed to take the deposition in Hawaii.

    Tom C. Clark:

    But when the first proceeding was recently instituted, the 1950 Act had not become effective or has it?

    William B. Murrish:

    I believe you are correct that the 1950 Act had not become effective at that time.

    Tom C. Clark:

    The second proceeding was merely, I suppose, the Government in claiming its rights under the 1950 Act has been — it applied to the deportee, is that right?

    William B. Murrish:

    Well, specifically I believe the original charge under the unamended Act was for charged membership after entry in an organization advocating the overthrow of the Government by force and violence.

    The changed charge under 1950 amended Act was charged membership in the Communist Party after entry.

    Tom C. Clark:

    He had the same counsel to approve these cases did he?

    William B. Murrish:

    I take it so from the Government’s brief I was not counsel at that stage.

    It does not appear in the record.

    Harold Burton:

    Mr. Murrish, just before you began this discussion, the objections of the deposition, you were giving illustrations of lack of due process in cases such as mob control of the proceedings or use of — known uses of false testimony.

    William B. Murrish:

    Yes.

    Harold Burton:

    So, in all of those cases that you gave, there was something that attacked the validity directly of what was done.

    Now, in this case, is there anything that raised any question or thrown any doubt upon the truth of the testimony that was given here?

    Is there any question raised as to it or shown as to his lack of reliability?

    William B. Murrish:

    Well, Your Honor, as I would understand for example the rule against mob intimidation of a trial, it would not — it would not make a trial valid that under the coercion of a mob, witnesses were coerced into testifying assumably and on their face to guilt.

    Harold Burton:

    No.

    But you do have the coercion of the mob.

    You have no coercion, you have no false testimony, you have nothing that attacks directly or indirectly the truth of this testimony, do you?

    William B. Murrish:

    That’s true.

    If a man is tried in absentia, the case made in his absence upon its phase does not show the weaknesses which a trial in presence would test and give safeguard against.

    Harold Burton:

    That’s not the same degree of lack of due process as if though something had been raised against but was done, because in your instances that you gave, it knockout whatever the case was — was against him.

    Here, there’s nothing that knocked that out.

    You just questioned.

    William B. Murrish:

    Except, Your Honor, that the want of fair trial —

    Harold Burton:

    Might —

    William B. Murrish:

    — knocks out in due process since the validity of any result it may have come to.

    Harold Burton:

    That is it might possibly be shown.

    It’s not that anything was down there.

    William B. Murrish:

    Well, this is a right which does not show its — its fruits until exercised for example until cross-examination has had almost every witness upon direct examination or at least seldom of witness on direct examination discloses the weaknesses of his testimony.

    Felix Frankfurter:

    Where is the testimony in which you will have into thinking then that I’m not, in which a chief witness said he identified him because he was — he must have been a Communist because he was present at the meeting and — and he would testify to Communist from his knowledge of communist procedure, where is that?

    William B. Murrish:

    Well, I believe, Your Honor, that is the witness — I believe I can find it rapidly.

    I think that is about 238 or 239, the witness is Uesugi.

    234, counsel says, the beginning at the bottom of page 234, it’s the witness and this is the witness Uesugi, says, “My belief is that the meetings I have been, I have seen him there, so I presume he is a Communist.”

    These meetings — “Well, what type of meetings?”

    “Well, they were educational meetings sometimes social.”

    “But who sponsored them?”

    Then he gives persons who sponsored them.

    There’s some place that he does refer to the procedure in the direct questions.

    Felix Frankfurter:

    What was his relation to the proof?

    What was his relation, his evident relation to the conclusion which went against this petitioner?

    Felix Frankfurter:

    Was he an important witness?

    I mean, can we —

    William B. Murrish:

    Well, he was important in the sense that of the four witnesses in Hawaii, only two were accepted by the hearing officer as having evidence value.

    One refused to testify and the — the other, even on his direct examination, was considered to be a witness without evidentiary consequence.

    Felix Frankfurter:

    This is one of the two —

    William B. Murrish:

    This is one of the two witnesses.

    Felix Frankfurter:

    Except him.

    William B. Murrish:

    That’s right, Your Honor.

    Felix Frankfurter:

    And you haven’t quite read what she —

    William B. Murrish:

    Oh, here it is at page 238.

    “You know this because of your familiarity with communist procedures, is that correct?”

    “Yes.”

    And then somewhere, he says, “Did you have any reason?”

    And then, there’s another place at the bottom of that page —

    Felix Frankfurter:

    Before that, before that 72.

    Was there anyone who told that these meetings were known to you as not a member of the Communist Party not that I know of?

    You say definitely, all the persons at this meeting were members of the Communist Party.

    But according to my reading, anybody who’s in that certain particular matter stand that, what they call meeting, you were there, well I think it’s Congress.

    “Do you know the difficulty that’s been said of the communist procedure?”

    “Yes”.

    I guess on that testimony it was fair, it would come to this.

    William B. Murrish:

    It seems to me that that — that that perhaps illustrates the point I was making in my last reply that the untested and particularly read testimony where the testimony is essentially given in the question and it is only answered yes by the witness.

    And at one place he’s asked, “Do you have any reason not to believe that he’s a Communist?”

    And he says, “No, I have no reason not to believe.”

    Indeed, there was no — one of the features here while I feel the right is broader than that particular case.

    One of the features here is that the hearing officer in Hawaii, not once exercised any supervision or restraint over the character of the examination or asked a single testing question, the examining officer asked questions which — which any counsel present could have readily objected to leading and conclusionary questions and then, when that’s significant beyond that, when the depositions are offered in Los Angeles, the middle two-thirds of the transcript consists of offering question by question and answer by answer, the deposition and there are maybe 200 objections, including objections that it would seem impossible to disallow and not a single objection is sustained.

    In other words, there was no surety of restraint if it were possible to cure examination without presence of counsel and cross-examination.

    Hugo L. Black:

    Do you know whether the regulations require in the absence of counsel for person of this kind, that the officer conducting the examination be particularly careful to raise any questions or challenge the evidence to the witness on — on behalf of the person accused?

    William B. Murrish:

    It’s my belief, Your Honor, that the regulations at that time and now indicate that it is the obligation of the hearing officer to oversee the examination and indicate that this — I don’t believe they say so explicitly, but indicate that this would be the more so as to an unrepresented defendant.

    And basically, put upon the hearing officer, the purpose of a fair and judicial hearing.

    Hugo L. Black:

    Do you know whether they require the hearing officer to conduct the cross-examination?

    William B. Murrish:

    I do not know that, Your Honor, or perhaps counsel for the Government can —

    Tom C. Clark:

    (Inaudible)

    William B. Murrish:

    Well, I believe that when it is considered how this evidence was achieved, that is without the securities of a trial attended by — but one side, I believe that a serious issue could be made that the one side of the evidence should not support a judgment affecting liberty.

    However, I did not make that point in my petition — and my petition and my thesis and my reasoning and principle are that the man was denied a due process right to be tried in his presence.

    Tom C. Clark:

    It’s your point, as I understood you (Inaudible)

    William B. Murrish:

    Well, the depositions or at least examination outside the presence of the tribunal can even occur in a criminal cause where there is impossibility.

    My basic point here is that fair trial was needlessly lost, that these witnesses were hailed and hearty and within the federal jurisdiction and that there was the sacrifice of — of one of the most fundamental of constitutional securities without the kind of exceptional necessity such as deaf or illness or beyond jurisdiction which has in due process made exceptions.

    Harold Burton:

    Your fundamental position is that it’s indispensable to due process that there’d be confrontation in this kind of a case?

    William B. Murrish:

    Yes, and I would say particularly so, where the witness concerned is not a peripheral or —

    Harold Burton:

    Let’s just say that the in the (Voice Overlap) —

    William B. Murrish:

    In a substantive portion of the case, yes.

    Harold Burton:

    And the Constitution specifically speaks of confrontation in a criminal case, but you think we should be still from due process the broader rule in his expressing, given in the kinds of expressing that they laid down in the Constitution.

    William B. Murrish:

    Well, this Court in Schneider against Massachusetts has already indicated that there is a broader right and a different right from the Sixth Amendment right of confrontation, a right of presence arising from the due process portion of the Fifth Amendment which does obtain in criminal causes and the same comparable right has been extended.

    And I would emphasize and I would feel that in principle, it must plainly be in principle that in the strictly civil proceedings of insanity confinement or about the operation that we would — it would not be contemplated that a man could be put behind bars allegedly for his own best interest.

    And in a strictly civil proceeding if he denied, indeed, that he was insane and the evidence against him if a picture of this record, a photograph of this record were transported or could be into an insanity proceeding if we could conceive of a federal court having such jurisdiction.

    And a man being confined as insane in Los Angeles by witnesses, who appeared in Hawaii while the man was not present, was not represented, I — I can’t conceive but that the principle of fair trial of due process would apply there.

    And I reason that since that is civil and every bit of civil as this deportation, the controlling circumstances the jeopardy to liberty and to life and that the basic principle being that society cannot tolerate error and unsafeguard of judgments were a man’s life.

    As a matter of fact, I feel that the respondent’s brief tends to confirm my principle.

    Half of respondent’s cases are strictly civil cases or civil statutes.

    One, for example, deals with protecting perishable seeds, a statute protecting seeds and hays from impurities and imports there’s permitted liberal depositions in the proceedings affecting that.

    The civil cases affect tort damages, a cargo is injured or damaged in an ocean trip and the parties are permitted freely to take civil deposition.

    It’s my contention that these do not parallel the right to life and to liberty.

    And that a liberty proceeding is not a due process proceeding unless the fundamentals prescribed by due process including the right of presence as in insanity and the operation cases is respected.

    Harold Burton:

    When in a case like this that investigation was to be made in China as to the dissent of people, the deportee or let — of course will be deported without a decent case.

    William B. Murrish:

    Well, I would answer first in principle that I feel, if a man’s liberty or life is at stake that whatever the proceeding, it’s better to air in not doing it than to air in doing it unfairly and that presence and the right to participate and be at the trial is so fundamental.

    It should always be respected particularly where the matter is not sufficient, is not established by other evidence independently.

    And I would think, that if the only witness available in a deportation case to establish a substantive and — and crucial issue lived in China that the witness would have to come from China or provisions would have to be made for confrontation of the witness there.

    Somehow, confrontation would have to be had, but the more so in the case at bar where the entire evidence and relating to the substantive basis, not to alienage or something like burden, but the basis for the deportation comparable in all respects to a criminal proceeding or insanity proceeding in such a situation at least, the entirety of the trial and all of the witnesses should not be suffered to testify ex parte.

    Thank you.

    Earl Warren:

    Ms. Rosenberg.

    Beatrice Rosenberg:

    May it please the Court.

    It’s never a very happy situation where a defendant is one implied and the event which the subject matter was at due and most of the witnesses are 2500 miles away.

    That’s the situation which calls for some kind of accommodation.

    And throughout our history, there has been one method of accommodation for criminal cases and one for every kind of case that’s short of criminal.

    And that includes some very important right, the one who denied deportation is a serious remedy so as denaturalization.

    There were many other rights involved in civil suit and yet, we have to deal with those within the framework of the civil rules rather than with the rules applying to criminal case.

    And I take it that the question here is whether what is the normal usual method of dealing with the testimony of distant witnesses and everything short of a criminal case in the most fixing for that term is in the circumstances of this case.

    Now, the Court hasn’t gone any further than that unconscionable, and that’s the problem we have to decide.

    Now, it — one simply can’t say, “Well, deportation is very serious, in fact, very serious rights and therefore, that it apply the criminal rule.

    It isn’t quite that simple.”

    Felix Frankfurter:

    But neither can one state a civil litigation?

    Beatrice Rosenberg:

    Now, it — it is — it is a civil litigation under the decisions of this Court, but I’m not relying on that.

    Felix Frankfurter:

    In those cases — in those cases, questions arose in which the civil procedure was being acted.

    William B. Murrish:

    That I think —

    Felix Frankfurter:

    Was that the statement?

    Beatrice Rosenberg:

    Yes, I think so, except that, I think what we come down to is this.

    Is this procedure unconscionable?

    And I know now that we help it by calling it civil or criminal except to this extent that this Court had said that the right of confrontation which is conferred by a separate provision of the Sixth Amendment that as such to bring outside of due process that applies only to cases which are criminal in the narrowest sense of that term, and to that extent, a deportee can gain no comfort from the Sixth Amendment.

    We are dealing with the question of due process of fairness in the light of the general standards of procedure of our time.

    Now, let me point out that denaturalization is ad litem as serious in no point to trying to waive these things, but that clearly comes within the actual framework of the civil rules and has to be handled that way.

    And that, as a practical matter, it is impossible to apply in so many things with exactitude, the criminal rule even if it was decided, because our procedure isn’t geared that way.

    In the criminal — under Rule 17 (b) of the Rules of Criminal Procedure, the process of a District Court of the United States runs throughout the United States.

    That’s not true in civil cases and it’s not true in relation to this problem, because while the administrator, even administrator, the agency has subpoena power.

    It can enforce its subpoena power only with relation to — it has to go to the Court to enforce it and I’m — the Court wouldn’t have authority to order a witness in Hawaii to come to Los Angeles.

    So that in that sense, there’s a real difference in the power that’s involved.

    Now, before I turn to the questions —

    Felix Frankfurter:

    May I ask, Ms. Rosenberg?

    You said that — that there could be no compulsion by power to bring the witness from — from Hawaii to be transferred to Los Angeles?

    Beatrice Rosenberg:

    I know of none, Your Honor.

    Felix Frankfurter:

    I’m not questioning that.

    Beatrice Rosenberg:

    I know of none.

    Felix Frankfurter:

    What?

    Beatrice Rosenberg:

    — you see in —

    Felix Frankfurter:

    Unless if you tell me this is so, I dare you to look to that.

    Beatrice Rosenberg:

    Yes.

    Well, it isn’t explicit as it is in the regular criminal case or regular civil case.

    Because in a criminal case, it’s clear there is a power.

    In a civil case, it’s clear there’s none.

    Now, you have to get an imprint in the sense that the immigration service can’t impose its subpoena only to the Court.

    Felix Frankfurter:

    But Ms. — Ms. Rosenberg, this business as we’ve already clarified as to put the issue and I think your position is down to it, on what is to me a clarified way by — I say, you don’t get answers by pulling out of cases that this is civil one not criminal.

    That’s the mean — the meaning of that.

    The Government has to put in a certain box, take the denaturalization.

    To be sure, several of the Bills of Rights provisions do not apply to this Court than the heart of — in your holding to the (Inaudible) case has made a great big difference between the manner in which a judgment can be secured in that denaturalization case in the manner in which the judgment can be secured and the case is now reformed, submitted on.

    Beatrice Rosenberg:

    That’s right, but —

    Felix Frankfurter:

    All right.

    Beatrice Rosenberg:

    In relation to the particular problem here, I don’t know that there is because —

    Felix Frankfurter:

    If that’s not proper —

    Beatrice Rosenberg:

    That’s right.

    Felix Frankfurter:

    That’s the problem.

    Beatrice Rosenberg:

    Well, that’s right.

    As I say, I’m not relying on the profit, on the –on the fact that this is technically one or the other.

    It is that in the light of the general procedure under which we operate and in the light of what is in a sense available, this is a problem of accommodation and the question here I — as I take it is not even whether this is the very best possible procedure that somebody might have thought of.

    The question is, is this procedure so unconscionable that it can be said to violate due process?

    Now, in that connection let me clear up —

    Felix Frankfurter:

    Would you agree — would you agree if that is the purpose.

    Then the particular record is not relevant.

    Beatrice Rosenberg:

    Yes, Your Honor.

    I think in my view, I don’t think the general questions post by — can’t go are in this case.

    I don’t think the Court has to destroy anything further than whether on this record, the proceedings that were had here were unconscionable.

    Beatrice Rosenberg:

    And it’s my endeavor to show that they were not.

    But let me clarify before going into this particular record, a matter which has come up which we brought up out of the record in Carlson against Landon.

    But I want to make it clear, in cases that’s been in candid to the Court in — in case there’s been misapprehension.

    This was a prior hearing under another warrant which was ultimately dropped because of the decision of this Court in the Sung case that administrative officers have to be appointed under the Administrative Procedure Act.

    And then, after the — the writer eliminated that rule, the humans were commenced under the 1950 Act and just started all over again.

    At that point, the Government didn’t move to transfer these hearings to Hawaii and that was vigorously opposed by counsel.

    That shows up from the Carlson record.

    It was not clear from that record whether he was in custody at that time or not.

    I have checked that he was not.

    Now, the extent that that may make a difference, I don’t know what would have happened if he was in custody.

    The point is that that was the background to this hearing.

    There had been vigorous opposition to transferring the case to Hawaii and in this hearing, neither side approved to transfer.

    Felix Frankfurter:

    Now, I — I are you going to tell me what I should like to know, namely, what extent of deportee, essential deportee wishes to control the transfer of a case of particular locals.

    Beatrice Rosenberg:

    There isn’t — there’s nothing in the statute that fixes a local.

    As matter of practice, it has always been brought where he is.

    If he is in jail, they bring it there, and if he’s out, they bring it in a district, his residence.

    There have been instances wherefore a particular reason, people have asked that it be transferred.

    This was done in the case of the late Mr. Rubinstein which is sometime — he asked to be transferred to the West Coast.

    It was done.

    Now, I don’t have any figures as to whether it is always done or but it — it has been done and it can be done because there was nothing that fixes it —

    Felix Frankfurter:

    We can express some rates and it would be taken to counsel that it be granted, is that right?

    Beatrice Rosenberg:

    That’s right.

    Felix Frankfurter:

    That’s about what it is.

    Beatrice Rosenberg:

    That’s about what it is.

    Felix Frankfurter:

    All right.

    Was it the Government’s — was it the Government’s motion in this earlier proceeding?

    Beatrice Rosenberg:

    It was the Government’s motion at that point.

    Is it possible to say from anything in this other record that except for that objection, the proceeding would have gone to Hawaii?

    Beatrice Rosenberg:

    No, I can’t say that, Your Honor.

    I don’t know.

    Beatrice Rosenberg:

    It’s a different — the counsel for petitioner was to say, there was a different —

    Felix Frankfurter:

    What?

    Beatrice Rosenberg:

    — examining officer —

    Felix Frankfurter:

    Of what?

    Beatrice Rosenberg:

    — in a different —

    Felix Frankfurter:

    I didn’t hear.

    Beatrice Rosenberg:

    I said counsel for petitioner was it to say in the earlier hearing and at this hearing.

    The representative of the Government was different, so I don’t know whether they — presumably had the earlier apply that is the examining officer.

    I don’t believe the hearing officer would even have had to file, though I don’t know that he was aware if it or not.

    The point is neither side made the motion on their field.

    I don’t know whether they employed some —

    Tom C. Clark:

    But all the hearings have the same proceedings (Inaudible) —

    Beatrice Rosenberg:

    No.

    This was — this had been discontinued after the Sung case and if — the prior hearing because they were considered under that decision to be invalid.

    And therefore, this was started over again as a new hearing.

    Tom C. Clark:

    That’s where the Government would transfer?

    Beatrice Rosenberg:

    No, with the prior hearing that the Government can move this in.

    Tom C. Clark:

    I understand.

    Beatrice Rosenberg:

    And in this — and then there was — they were canceled then there was new warrant of arrest under the 1950 Act.

    That was — it was at that point that Hyun was taken into custody under the 1950 Act, the question that was before this Court in Carlson against Landon.

    The assault, whether the 1950 Act conferred authority to take him into custody pending the hearing on deportation and it was under this hearing and this warrant that he was taken into custody.

    Tom C. Clark:

    So, referring to — all I find in the record was, first, the warrant of arrest provision in 1949.

    Beatrice Rosenberg:

    That’s right.

    Tom C. Clark:

    And that was beyond the prior Act.

    Beatrice Rosenberg:

    In the 1970 Act.

    Tom C. Clark:

    And do you have examiner that was part of the — the Immigration Service, he has hearing, is that right?

    Beatrice Rosenberg:

    That’s right.

    Tom C. Clark:

    And so, he came along and decided in here that they’re not proper, I assume.

    Beatrice Rosenberg:

    That’s right.

    Tom C. Clark:

    So, you didn’t issue a new warrant at that time did you, you just (Voice Overlap) —

    Beatrice Rosenberg:

    Well, after — the hearings were discontinued at this point and then shortly, when it was six months or something of that sort after to some decision, Congress passed a writing to the Immigration Act which nullified in effect — effect to the Sung decision as to the qualification of the hearing officer.

    By that time also, the 1950 Act had passed and it was at that point that a new warrant was issued.

    I think the date was —

    Tom C. Clark:

    That’s in October, 1950, October.

    Beatrice Rosenberg:

    That’s right.

    It’s October 31st, 1950, the warrant was served.

    Tom C. Clark:

    When did you make the notion to transfer it in Hawaii (Inaudible)

    Beatrice Rosenberg:

    The exact date?

    I don’t have the exact date here but it was in connection with those 1949 hearing.

    The — I don’t — as I say it was, the hearings had proceeded, and it was, I think, it’s the second hearing of that sort there that it was enacted.

    But the — and there was protest and I think they had agreed not to do it, but then at this point, the whole thing became moot because of the Sung decision.

    Tom C. Clark:

    Suppose it’s been transferred to Hawaii, would they practice in the department questions to that held that came into proceeding there he was at new arrest warrant?

    Beatrice Rosenberg:

    Well, I presume that he was there, yes.

    The — the general practice is to simply have a hearing where the alien is.

    Now, if — if the hearing had been transferred to Hawaii and had been there, I presume and since everybody knew that that’s where the witnesses were, I had no doubt that they would dare, then have taken him into custody in Hawaii, but it just never got to that point.

    He was not in custody at the time the transfer was meant.

    The motion for transfer was meant.

    Earl Warren:

    Well, Ms. Rosenberg, is there anything in the statutes or the regulations which would prevent the Government from moving a deportation proceeding from one part of the country to another over the objection of the deportee?

    Beatrice Rosenberg:

    No.

    There’s a — I don’t find anything in the statute.

    I say the statute is summoned on venue.

    It’s just that the –- it should be taken into custody and deported.

    They would be, I suppose —

    Earl Warren:

    Could they, I suppose (Voice Overlap) in San Francisco and then at the — when the Government moved to New York and then if they wanted to move to New Orleans or some other place over the objection of the deportee?

    Beatrice Rosenberg:

    Well, there’s nothing in the statute, Your Honor, but we always have the question of —

    Earl Warren:

    That’s what I meant.

    Beatrice Rosenberg:

    — whether it would be fair.

    Earl Warren:

    No, I just asked if there’s anything in the statute or the regulation.

    If there isn’t that’s all I want to know.

    Beatrice Rosenberg:

    No.

    Beatrice Rosenberg:

    As I say that the — the regulation on — I’m just not specific about venue.

    Tom C. Clark:

    When he objected — when he objected though, he didn’t transfer.

    Beatrice Rosenberg:

    That’s right, that the —

    Stanley Reed:

    Was — was it a motion to transfer?

    Beatrice Rosenberg:

    At the hearing and something similar.

    I gather —

    Stanley Reed:

    Directly that, we don’t have that record that here.

    Beatrice Rosenberg:

    We don’t have that record here and I — if the fact that the motion had been made appears from the record in the Carlson against Landon case, Mr. Hyun was one of the people involved in that case.

    That’s where we discovered it in the first parts.

    Because and in which he — it was part of his allegations against since being held in custody on a general tone in which it is presented there was how terribly unfair of the Government to under move the proceeding to Hawaii.

    But because it was not clear from that what his status was, I don’t have the administrative record that was being used.

    I just asked him to check on that and then he just — they said he was not in custody at the time it happened.

    And that he had objection and by stipulation it was agreed not to transfer the hearings, and then at that point, the whole thing came to an end so that’s the status of it.

    Well now, then, to get — if we assume that the hearing was properly held in Los Angeles, then I think, since nobody made a motion to do it and since the place of residence is a normal place for bringing it, we can start with that assumption.

    As I said before, there is no process that I know of by which the immigration authorities could have compelled the witnesses to come from Hawaii to Los Angeles.

    I don’t know whether the matter was explored or not, whether they would have come voluntarily.

    The fact that the previous motion was made, the fact that they did intend is just perhaps the witnesses were not willing to come.

    It is certainly clear from this record, I think, that the witness thus — at least some of them would not have come.

    There was the man who appeared and after identifying this is new, claimed the privilege and gave no testimony at all.

    I think it’s also fair to say from this record that the witnesses had obviously not — they all came pursuant to subpoena.

    And that when the Government called four witnesses, they presumably thought they had something to offer, it’s the fact remains of the four only two have a third of somewhat doubtful validity, although, partly relied on by the immigration officer none of course.

    Mr. Justice Frankfurter, when — when he’s judging the evidence in this case, I think it is not only the witness Uesugi who — who must be considered but much more and much more significantly, the witness Izuka whose testimony appears at page 240 —

    Felix Frankfurter:

    I just —

    Beatrice Rosenberg:

    — in this record.

    Felix Frankfurter:

    My question did not imply that it’s ordinance of the evidence.

    My question was meant to imply, said it’s rather shocking to me that that kind of evidence would be the basis of the new conclusion.

    I think if that witness will be cross-examined by any kind of a competent lawyer in five minutes, it would have accomplished.

    Beatrice Rosenberg:

    Well, I suggest to Your Honors that, I think there’s some trial counsel.

    Felix Frankfurter:

    Pardon me?

    Beatrice Rosenberg:

    I — I was suggesting to Your Honor, I think that some trial counsel might have made a deliberate decision not to cross-examine that witness.

    Felix Frankfurter:

    Well, but I’m troubled that the Government can enlist its testimony as loose as for me that I’m persuasive and fundamentally meaningless that that is the basis on which important action was taken.

    Well, follow to say whether there must have been something because he was there.

    What kind of evidence is that?

    Beatrice Rosenberg:

    Well, I take it, Your Honor, that this was — and that is my point here.

    That this, that certainly, it was reasonable to proceed by deposition in the first instance because this was a largely, as I read this record, an exploratory matter presumably of witnesses who would testify under the compulsion of subpoena.

    I don’t know this but the record suggests this to me.

    There’s one witness whom the Government thought had information who came with an attorney and claim the privilege and gave no information whatsoever.

    There is another who gave a very little information that one could rely on as proving anything.

    There was a third since Mr. Uesugi we’ve been talking about whom in toto wrote certain things are fairly low, I — I think had some information which if it weren’t on the basis of this order, I think might well have been questioned but which did tend to supplement what the testimony of the one witness whom I think gave signs of giving very explicit and damaging testimony.

    Harold Burton:

    Can you refer —

    Beatrice Rosenberg:

    Now, my —

    Harold Burton:

    Ms. — Ms. Rosenberg, can you refer us to the testimony of that fourth witness that is so convincing with results set the record?

    Beatrice Rosenberg:

    That’s Mr. Izuka on largely around page 241 and what he did was to testify that he was in doubt a trained communist who had been in the Party, withdrawn out when it would change his character, who have reactivated the Party in 1945.

    And in that connection, he said he was at three executive board meetings of the Communist Party, executive board meetings.

    Now, he himself was not a member of the executive board meeting.

    Opponents have said something about that, but he wouldn’t act those executive board meetings as a communist to discuss communist affairs.

    And that each of those three executive board meetings of the Communist Party, he found the defendant there as a member of — as a representative from one of the cells that made up the executive board.

    Now, this is supplemented by the rather weaker testimony, considerably weaker testimony, Mr. Uesugi.

    Also, it went to a more literate type of witness, I think, one can — whether it’s English difficulty or not, I don’t know that Mr. Hyun was a member of this more cell, these meetings that he belong to.

    Now, he said he was a member of the cell.

    Mr. Izuka said he found him at the executive board meetings as a representative of that cell.

    And that brings me to this question as I’ve been trying to point out that the Government, it seems to me, was testified in the first instance before it undertook either the — I meant that it could.

    I don’t know whether it could or not have brought these witnesses to Hawaii or of taking as a matter of absolute (Inaudible) taking the defendant to Hawaii to say, “Well, let’s see how far we get with the normal usual method of taking the — the testimony of distant witnesses which is a testimony by deposition.

    Now, I would agree that there could be situations where after this, in a sense first, exploratory approach to these witnesses.

    It might — there might be a situation to tell it in which the question taking it all and all in relation to the fact that this is deportation in relation to testimony of the witnesses.

    It would be a mtter of due process to bring the witnesses before the defendant.

    That is the defendant of the witnesses or the witnesses to him, one way or the other.

    I would say we have such a question.

    We might have had such a question as though there ain’t serious issue of identity in this case.

    Earl Warren:

    Serious issue of what?

    Beatrice Rosenberg:

    Of Identity in this case.

    But however, way — when it does give or it does not give to the testimony in this case, one thing is perfectly clear, it seems to me, and that is that there was no issue of identity.

    There are statements in my opponent’s brief that they’re used as an identifying picture, a means of identification his attorney’s passport in which his name would appear on the state service.

    Well, the passport is not printed in the printed record here but a photostat of it is in the record that’s on file, the original record that’s on file in this Court.

    And it appeared today, one’s been talking the third set, pretty much like our passports in that one sheet of picture and the other sheet has a lot of attorneys’ writing, but there is a name David Hyun in English on it.

    Well, I assume it’s two different pages and there’s just absolutely nothing in the record to suggest that they — the witnesses were not shown, just the picture, without the name.

    And secondly, even when a person before the Court knows what his name is, he can’t read this record without being perfectly convinced that the one thing nobody had any question about was who they were talking about, not to say between petitioner here identified by the standpoint.

    Even the witness who — we just don’t give any information when proven against self-incrimination, immediately recognized, petitioner has been.

    So, there was, as a result of this, initial deposition taken of which the petitioner was giving notice at the time and place and in fact that he could be represented by counsel.

    It’s a normal way of doing this.

    There was no issue of identity emerged from this.

    Now, petitioner wasn’t there, but he was given a ride and which, in many cases, my — people might consider at least it’s valuable, is the right to be there.

    And that is, that after the testimony was taken on the record, it was transcribed, it was served, uncounseled for petitioner with, of course, opting petitioner consult with petitioner.

    They had all together, I think, about twomonths in which to study it.

    They were — it was served on them in — on January 22nd, I think, the record shows.

    On March 13th, the hearing convened.

    Counsel said he hadn’t had time to study it thoroughly.

    He was given additional time to study.

    And with that, do you want a prepared cross interrogatory?

    Do you want to call witnesses?

    Do you want to have witnesses summoned for you in Hawaii?

    Immigration Service was willing to use its subpoena power.

    He — at one point he said, “Well, we’re thinking about it,” and then he said, “No.”

    Now, when — it may be said about the right of Hawaiian counsel or the opportunity of Hawaiian counsel to, of course, to have adequately at the first instance when counsel, Los Angeles counsel for petitioner had had an opportunity to completely study all these examinations.

    It’s all difficult for me to believe that it’s unconscionable, unfair to say that with all that opportunity when there is no issue of identity in the case, that just because petitioner isn’t brought there at government expense, that renders the hearing so unconscionable that must be abrogated as a matter of due process.

    Felix Frankfurter:

    Did the counsel — did the counsel formally object to the proceeding in Hawaii and that it deprived him of attendance, is that as a matter of record?

    Beatrice Rosenberg:

    A — a government expense, Your Honor.

    Felix Frankfurter:

    Yes, I understand that.

    Was that — did he made here the objection that is now made?

    That if some said, you have this deposition to take into Hawaii, and this time present and you must take me there, did the counsel make that objection?

    Beatrice Rosenberg:

    Yes.

    Felix Frankfurter:

    Well, if he does, then he has a right to stand on that, which I think — I think it’s my right to go there and you can’t bother me of with something less just as good.

    I don’t think it’s just as good.

    Beatrice Rosenberg:

    He has a right —

    Felix Frankfurter:

    Do you think he has a right to take that point and this is far from taking it by saying, “Oh well, you could have got yourself there when you could have had no counsel.”

    Beatrice Rosenberg:

    Oh, I take it he’s not far from making his point, Your Honor.

    Felix Frankfurter:

    I mean —

    Beatrice Rosenberg:

    But I take it that in a question of whether a court has to decide whether a procedure is fundamentally unfair, it’s one thing to say that using the normal method of deposition taking which is the way in which our standard procedures are normally followed, having done as far as we could go with that, it still becomes clear on the facts of this case that we have.

    Let us say an issue of identity on which it can’t be solved or having cross-examined the Government’s witnesses if counsel had come into the hearing officer and said, “Now, look here.

    Look at this record.

    You can see from this record that there’s a very, very close question of credibility.”

    Now, it seems to me nobody can decide this but the person who’s going to decide the whole case.

    I think that’s a very different case from the case we have here.

    So, well– well the petitioner, of course, has the right to stand on it.

    It seems to me that when a court has determined it whether the procedure was basically unfair, it is also fair for the Court to take into consideration if found that there was nothing inherently unfair in this procedure and that if petitioner wanted to make the point that in this case, there was something very special about the fact of this case, then our position is, he hasn’t done it here.

    Felix Frankfurter:

    Ms. Rosenberg, I know that your witness as if — you might hurry turning of the pages.

    I notice that — that some of the testimony there’s an appended to the meaning to which it reaches and sent his man to which I’m concerned to an executive committee meeting of the Communist Party.

    Now, I can take the judicial notice of the proceedings before this Court and of other courts, so of federal courts.

    We know that that issue was strongly contested what the meaning of its meeting was, whether collaboration at that time meant they were or weren’t members of the Party etcetera, etcetera.

    And you and I ought not to know what that cause of proceeding was and what’s the outcome of this proceeding that there had been, and why should I think that this kind of testimony, one-sided testimony has anymore convincing then than the elaborate trial that it was had, distinguished in that conviction.

    Beatrice Rosenberg:

    Well, I take it, Your Honor, that’s not the question here.

    Felix Frankfurter:

    Well, why not?

    Beatrice Rosenberg:

    I take that the question is, that if petitioner hasn’t raised the sufficiency of the evidence.

    I take it that the question is has not, and not the way to be given to the evidence on — on the printed record.

    The question is if there’s something about this case which made his presence necessary.

    I mean he made it so necessary that it was up to the Government to make it certain he got there, by one means either by bringing the witness or not.

    Felix Frankfurter:

    Well now, who —

    Beatrice Rosenberg:

    Now, if this is weak testimony, possibly it —

    Felix Frankfurter:

    I’m not addressing myself to the — to the value of the error into such.

    What the question — what the case really is the fairness of a procedure which in evident brings out testimony like this which are not the advantages of thorough cross-examination.

    Felix Frankfurter:

    We know that the Congress of the United States abolished the conjunctions of labor people in good parlance because of the unreliability of affidavit and depositions of the basis of reaching the legal conclusions the theories enforce.

    Beatrice Rosenberg:

    The opportunity for cross-examination was present in this case.

    Not only was there the opportunity to have counsel present at the original taking, but as I have said, after the direct testimony was in, opportunity was given just in that cross-interrogatory.

    Opportunity was given to call witnesses in Hawaii.

    The defendant, petitioner here chose not to take advantage for that opportunity.

    Now, opportunity for cross-examination is not the same thing as the actual presence of the accused.

    Felix Frankfurter:

    But it makes a lot of difference whether the client should presumably know most about it, this next to his lawyer and — and this would serve indictment.

    Beatrice Rosenberg:

    Here, as I attempt the outset, there is no doubt about the fact that it’s better when everybody is in the same process.

    That, there’s no doubt about that, but the question is whether the necessity of the client being there is so great that when it’s not assured at Government expense and as a matter of right regardless of the circumstances, that the mere fact that that isn’t assured when there is an opportunity for cross-examination and for counsel.

    In addition, an opportunity which normally is not available at the trial, the opportunity to — in a sense study a direct examination in a way that few of us do, when the witness is actually up before the stand, whether that taken all in all is unfair.

    I mean, as I said the outset, I don’t think that its function of need here is advocate in this case or of this Court in deciding the case, to decide whether this is the very, very best possible procedure that could have been devised.

    The — the issue here is, whether what was done here with having the depositions in Hawaii of witnesses who obviously came under compulsion, having that done originally under notice, with notice, an opportunity for counsel to be present.

    Thereafter, given the counsel with ample opportunity to study them was an opportunity to prepare for us interrogatories, with an opportunity for us only.

    To keep always so as he’s saying, he do and never did, when finally they throbbed, they finally got a witness all he offered to prove was that the Communist Party was not the kind of an organization of Congress.

    The minutes of the deposition were given to counsel to the other side.

    Did he make the request that he be permitted to go over and cross-examine or they’d be brought over here as if —

    Beatrice Rosenberg:

    We kept insisting that the depositions were not admissible at evidence because the Government had not arranged to pay for his going over or his counsel or both, that’s what he said.

    He said that.

    Beatrice Rosenberg:

    He said that, yes.

    He — he kept saying that all three of them.

    Earl Warren:

    Well, at what stage of the proceeding, Ms. Rosenberg, did he first raise that issue?

    Beatrice Rosenberg:

    Well, as counsel stated, at 118 in making his objections to the depositions at all, he did say the Government hasn’t offered to pay for it.

    Earl Warren:

    Now, when was that?

    Beatrice Rosenberg:

    That was before the depositions were ordered.

    Earl Warren:

    When the depositions were paid.

    Beatrice Rosenberg:

    And he consistently, throughout this proceeding, kept taking the position that it’s a matter of right.

    This isn’t a matter of violence a bit.

    The depositions were admissible in evidence because the Government had not transported, paying the expenses of transporting him or his counsel or both.

    What we said was that, he never said he was financially unable to employ counsel as was the situation in the case, the First Circuit had decided sometime before in which the Ninth Circuit hearing denied.

    That didn’t show up in this case until the hearing before then the Board of Immigrations Appeals, which is handled by counsel who was not cancelled down below.

    Beatrice Rosenberg:

    So that’s basically our position now, taking it all and all in the circumstances of this case which obvious desire of petitioner that the hearing remain in Los Angeles where he had been counseled for three years or several years at any rate.

    That with all the opportunity that was given to him, notice in the first instance opportunity to study, opportunity to cross-examine, and opportunity of the cause of witnesses.

    The fact that in this case, there was no substantial issue of identity, and that if there was anything to be brought out by cross-examination, we think he first had to show that by using what was available to him.

    That on this basis, it was not on theory either to take depositions in the first place or to use an evidence in the second and that therefore, there was no violation of due process and that the order of the court below should be affirmed.

    Earl Warren:

    Mr. Murrish, may I ask you if you agree with Ms. Rosenberg, that the Government did not have the authority to bring witnesses by a subpoena in a proceeding of this kind from Honolulu to Los Angeles?

    William B. Murrish:

    No, Your Honor.

    In their — in their reply brief, they took the position that they were not sure and I would say that that’s a more accurate statement of law.

    The law gives them the power.

    It’s very evident in the 1970 statute.

    It gives them the power to subpoena.

    It doesn’t say that it’s limited and I don’t think you’d know until it was tested whether it was limited or not and as far as the power of the District Court in Hawaii to order a person to appear even outside their jurisdiction, they could make such an order.

    It would make many — the orders in the property cases or divorce cases requiring people to do things so long as we have in — in personam jurisdiction over them, we can tell them what to do and enforce it.

    No, I wouldn’t take that, but I would agree that it has not been tested or decided and I would take the final position that the Constitution, what the Constitution requires and the Federal Government has jurisdictional capacity to supply.

    It has a way and must find a way under the Constitution to supply.

    Would you mind if I make one statement in response?

    Earl Warren:

    Yes, you may.

    William B. Murrish:

    Just one thing and that is, that it has been said that there is no issue of identity and I just want to leave with this Court this thought.

    The — it’s in the record, the picture of the passport that bears the name of the person on its face.

    Now, it seems to me unconscionable to say, that when a man shows such a passport and picture says, “Yes.

    That’s David Hyun,” and then afterwards, consistently uses that name.

    To say from that, that there’s no question of identity when the whole basis of this disassociation in people and without the opportunity of the person to have been there and to cross-examine is to reach the conclusion which would always appear on the one-sided story of a false witness or a mistaken witness, false or mistaken.

    It never appears until he’s cross-examined and there’s a great difference between identifying people when liberty and life were at stake in person and identifying him from a picture that’s got their name beside it and tells the answer just as all the questions were leading.

    The identification is leading in the character of the footnote.

    Earl Warren:

    May I ask?

    Would you contend, Mr. Murrish that your client was not at these meetings?

    William B. Murrish:

    Your Honor, my client, because of the parallel between the deportation proceedings and the criminal law, he was required or at least felt impelled to take the protection of the Fifth Amendment with respect to the substantive issue.

    He was disabled thereby, in responding.

    His only defense was defense and cross-examination.

    He was deprived of that and that left only a one-sided story.

    Earl Warren:

    Yes, but what I — what I was trying to do would just separate the two issues as to whether — whether it is just a constitutional issue that we have here or we — whether we have also a factual issue as to whether he was in truth and in fact, the person who was identified there now.

    William B. Murrish:

    Well —

    Earl Warren:

    When we’re — when we’re dealing with the situation to determine whether there’s a fair plan, now it’s — it’s — to me, it would be a very important thing if there was a serious contention that he was not the person who was identified there.

    William B. Murrish:

    There’s a difficulty in my answering that which comes from the fact that a person would not want to where there’s the opportunity that it may ultimately be cross-examination to disclose but the cross-examination would be.

    But I would say that I am advised that there is a serious question but that the most — what has been pointed to as the most important witness here would not have testified the same way had he confronted the individual.

    He would not have testified as he did.

    Harold Burton:

    Can I ask one question Mr. Murrish?

    If there had been no depositions taken in Hawaii, is it your position that your client has the right to demand or the Federal Government as a matter of constitutional right, transportation for him and his counsel to go there and take their position with — with the witnesses?

    William B. Murrish:

    No, I don’t believe even in a criminal case that the defendant would have such a right and I don’t press my —

    Harold Burton:

    You would just forego —

    William B. Murrish:

    — law of beyond the criminal —

    Harold Burton:

    If you forego them, there were no depositions taken there but he has a right to go there in their absence.

    William B. Murrish:

    I — I suppose he would have if the Government, if the subpoena power is sufficient to bring Government witnesses from Hawaii, then the subpoena power would be sufficient to bring those same with, I mean, like witnesses on his behalf to Los Angeles, the proper place for hearing and he would have that.

    But I don’t think he has that position by it.

    Earl Warren:

    Thank you.