BROWN v. UNITED STATES.
No. 43.
Supreme Court of the United States
March 31, 1958.
Argued April 4, 1957.—Restored to the calendar for reargument June 10, 1957.—Reargued October 22, 1957.
356 U.S. 148
Ralph S. Spritzer argued the cause for the United States. On the briefs were Solicitor General Rankin, Warren Olney, III, then Assistant Attorney General, and
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is a proceeding of summary disposition, under
Thereafter petitioner took the stand as a witness in her own behalf. She comprehensively reaffirmed the truth of the statements made at the time of her naturalization, and, although she admitted membership in the Young Communist League from about 1930, claimed that she had resigned in 1935 and had not engaged in any Communist activities from 1935 until her naturalization in 1946. Not content to rest there, petitioner went on to testify that she had never taught or advocated the overthrow of the existing government or belonged to any organization that did so advocate, that she believed in fighting for this country and would take up arms in its defense in event of hostilities with Soviet Russia, and that she was attached to the principles of the Constitution and the good order and happiness of the United States.4 This
The conduct for which petitioner was found guilty of contempt was her sustained disobedience of the court‘s direction to answer pertinent questions on cross-examination after her claim of the privilege against self-incrimination had been overruled. On the first argument in this Court, petitioner stood on the validity of her claim of privilege as the essential ground for reversal here of the judgment of the Court of Appeals. It was taken for granted by petitioner no less than by the Government that for a party insistently to block relevant inquiry on cross-examination subjects him to punishment for contempt in the exercise of the power vested in the federal courts throughout our history. Act of Sept. 24, 1789,
On reargument, both sides, responsive to a suggestion from the bench, discussed the relevance of Ex parte Hudgings, 249 U. S. 378, to the present situation. That case, followed in In re Michael, 326 U. S. 224, held that for perjury alone a witness may not be summarily punished for contempt. The essence of the holding in those cases was that perjury is a specifically defined offense, subject to prosecution under all the safeguards of the Fifth and Sixth Amendments, and that the truth or falsity of a witness’ testimony ought not be left to a judge‘s unaided determination in the midst of trial. Perjury is one thing; testimonial recalcitrance another. He who offers himself as a witness is not freed from the duty to testify. The court (except insofar as it is constitutionally limited), not a voluntary witness, defines the testimonial duty. See Judge Learned Hand in United States v. Appel, 211 F. 495.
Such has been the unquestioned law in the federal judicial system time out of mind. It has been acted upon in the lower courts and this Court. Whatever differences the potentially drastic power of courts to punish for contempt may have evoked, a doubt has never been uttered that stubborn disobedience of the duty to answer relevant inquiries in a judicial proceeding brings into force the power of the federal courts to punish for contempt. Trial courts no doubt must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice. It is no less important for this Court to use self-restraint in the exercise of its ultimate power to find that a trial court has gone beyond the area in which it can properly punish for contempt. We are not justified in sliding from mere disagreement with the
We thus reach the constitutional issue.
Petitioner contends that by taking the stand and testifying in her own behalf she did not forego the right to invoke on cross-examination the privilege against self-incrimination regarding matters made relevant by her direct examination. She relies on decisions holding that witnesses in civil proceedings and before congressional committees do not waive the privilege by denials and partial disclosures, but only by testimony that itself incriminates. More particularly, petitioner‘s reliance is on Arndstein v. McCarthy, 254 U. S. 71; McCarthy v. Arndstein, 262 U. S. 355, 266 U. S. 34. In that litigation a witness called before special commissioners in bankruptcy proceedings filed schedules of his assets and liabilities and made certain disclosures in respect to his financial condition, but refused to answer numerous questions on the ground that to do so might incriminate him. This Court held that the witness’ refusal did not constitute contempt; that since the evidence furnished “did not amount to an admission of guilt or furnish clear proof of crime . . . ,” the privilege had not been abandoned and the witness was entitled to “stop short” when further testimony “might tend to incriminate him.” 254 U. S., at 72; 262 U. S., at 358. The testimony of petitioner in the present case admittedly did not amount to “an admission of guilt or furnish clear proof of crime,” but was, on the contrary, a denial of any activities that might provide a basis for prosecution.
Our problem is illumined by the situation of a defendant in a criminal case. If he takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of
A witness who is compelled to testify, as in the Arndstein type of case, has no occasion to invoke the privilege against self-incrimination until testimony sought to be elicited will in fact tend to incriminate. It would indeed be irrelevant for him to do so. If he is to have the benefit of the privilege at all, and not be confronted with the argument that he has waived a right even before he could have invoked it, he must be able to raise a bar at the point in his testimony when his immunity becomes operative. A witness thus permitted to withdraw from the cross-fire of interrogation before the reliability of his testimony has been fully tested may on occasion have succeeded in putting before the trier of fact a one-sided account of the matters in dispute. This is an argumentative curtailment of the normal right of cross-examination out of regard for the fair claims of the constitutional protection against compulsory self-incrimination.
On the other hand, when a witness voluntarily testifies, the privilege against self-incrimination is amply respected without need of accepting testimony freed from the antiseptic test of the adversary process. The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry. Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably
Petitioner claims that the District Court found that she had waived the privilege merely by taking the stand, whereas the Court of Appeals affirmed her conviction on the ground that she had taken the stand and testified as she did. Petitioner argues from this distinction that her conviction has been affirmed on a charge not made in the District Court. She also suggests that the reason given by the District Court for finding a waiver misled her as to the actual legal question involved, and that but for the assertions of the court she might have withdrawn her opposition to the cross-examination and answered the questions put by the Government.
Affirmed.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS concur, dissenting.
This is another decision by this Court eroding the constitutional privilege against self-incrimination. See,
The questions which petitioner refused to answer undoubtedly called for responses which might have tended to incriminate her. Nevertheless, the Court holds that she can be imprisoned for contempt on the ground that a defendant in a civil action who voluntarily takes the stand to testify waives his privilege against self-incrimination to the extent of relevant cross-examination. Thus in substance the majority has extended the rule heretofore applied in criminal prosecutions to civil proceedings. I think this further encroachment on the privilege is unwarranted. I would reverse the petitioner‘s conviction on the basis of the general rule stated in Arndstein v. McCarthy, 254 U. S. 71, 262 U. S. 355, 266 U. S. 34, that a witness in a civil case does not forfeit the right to claim his privilege unless he makes disclosures which amount to “an actual admission of guilt or incriminating facts.” 262 U. S., at 359.* Petitioner concededly made no such disclosures.
In my judgment the rule of waiver now applied in criminal cases, although long accepted, is itself debatable and should not be carried over to any new area absent the most compelling justification. By likening the position of a defendant who voluntarily takes the stand in a civil case to that of an accused testifying on his own behalf in a criminal prosecution the majority unfortunately fails to give due consideration to material differences between the two situations. For example failure of a criminal defendant to take the stand may not be made the subject of adverse comment by prosecutor or judge,
The Court brushes aside this dilemma by assuming that a civil defendant can control the scope of his waiver when he voluntarily takes the stand because he “determines the area of disclosure and therefore of inquiry.” I do not believe this assumption is correct. While it is true that a party can determine the area of his own disclosures on direct examination, the scope of permissible cross-examination is not restricted to the matters raised on direct but may include other and quite different matters if they will aid the court or jury to appraise the credibility of the witness and the probative value of his testimony. Such questions, which may range over a broad area and refer to matters collateral to the main issues, cannot be foreclosed by the witness and often cannot even be anticipated by him. See, e. g., Radio Cab, Inc., v. Houser, 76 U. S. App. D. C. 35, 128 F. 2d 604; Atkinson v. Atchison, Topeka & Santa Fe R. Co., 197 F. 2d 244. See also Powers v. United States, 223 U. S. 303, 314-316.
Furthermore a party to a civil action, unlike the defendant in a criminal case, may be compelled by his adversary to take the stand and thus forced into a situa-
The reason offered by the Court for compelling a civil defendant to incriminate himself or be imprisoned for contempt is that to do otherwise would be to accept testimony untested by cross-examination and thus extend “a positive invitation to mutilate the truth a party offers to tell.” If punishment for contempt were the only method of protecting the other party and the trier from a one-sided, distorted version of the truth the substantial encroachment made by the majority on the privilege against self-incrimination might be somewhat more tolerable. But it is not. For example, as an obvious alternative, such one-sided testimony might be struck in full or part, if the occasion warranted, with appropriate directions by the judge for the jury to disregard it as unreliable. And in some instances where the prejudice to the opposing party was extreme and irremediable the court might even enter judgment in his favor. See Hammond Packing Co. v. Arkansas, 212 U. S. 322, 349-354. Compare National Union of Marine Cooks v. Arnold, 348 U. S. 37. By such means the trial judge could protect the right of the opposing party to a fair trial. At the same time the witness would not be treated as having waived his privilege so that he could be punished by fine or imprisonment for refusing to incriminate himself.
Since I believe that petitioner‘s conviction should be reversed for the reasons stated above, I find it unneces-
MR. JUSTICE BRENNAN, dissenting.
I would reverse this judgment. The District Courts do not have the untrammeled discretion to punish every contemptuous act as a criminal contempt. That is the basic teaching of such decisions as Ex parte Hudgings, 249 U. S. 378, and In re Michael, 326 U. S. 224. It will not be gainsaid that danger of abuse of this extraordinary power inheres in the absence of the safeguards usually surrounding criminal prosecutions, notably trial by jury and any but self-imposed judicial restraints upon the extent of punishment. That danger of abuse has required this Court closely to scrutinize these cases to guard against exceeding the bounds of discretion in the use of the power. We do so in the exercise of our general supervisory authority over the administration of criminal justice in the federal courts, McNabb v. United States, 318 U. S. 332, 340, but primarily because of the “importance of assuring alert self-restraint in the exercise by district judges of the summary power.” Offutt v. United States, 348 U. S. 11, 13.
With that principle in mind, I cannot conclude that it was proper to convict petitioner of criminal contempt. Her contempt consisted in refusing to answer questions put to her on cross-examination because she believed that the Fifth Amendment afforded her a privilege to make such refusals. The majority concedes that the reason given to the petitioner by the trial judge to prove her waiver was an incorrect one but concludes that “Taken in
The trial judge made his final ruling on the question of waiver on the morning of February 18, 1955. He repeated his statement that Mrs. Brown had waived her privilege by taking the stand.* The petitioner, believing that her conduct was privileged, continued to refuse to answer. No further evidence was offered after the petitioner‘s refusal to answer the questions put to her on cross-examination by the Government. On that same afternoon the trial judge delivered his opinion finding “by clear, unequivocal and convincing evidence, that the defendant did procure her citizenship illegally and fraudulently.” He then proceeded to hold the petitioner in contempt for her refusal to answer. It is true that at this time he advised the petitioner that she had waived
In these circumstances, I can hardly believe that petitioner was guilty of such contempt of the authority of the court as to merit six months’ imprisonment. The most that can be said of her conduct was that her lawyer could not predict that “taken in context” the appellate courts would sustain the trial judge‘s technically incorrect ruling on waiver.
This Court has recognized that the criminal-contempt power should be limited in its exercise to “the least possible power adequate to the end proposed,” In re Michael, supra, at 227. The “end proposed,” it should be clear, is not to impose vengeance for an insult to the court whose decree has been flouted, but to aid the fair and orderly administration of justice by deterring noncompliance with the court‘s lawful order. But I think that in contempts, as in other areas of the law, penal sanctions should be used sparingly and only where coercive devices less harsh in their effect would be unavailing. In other words, there is a duty on the part of the district judges not to exercise the criminal-contempt power without first having considered the feasibility of the alternatives at hand. MR. JUSTICE BLACK persuasively demonstrates in his dissenting opinion that the trial judge here might reasonably have resorted to several corrective devices to avoid both prejudice to the Government‘s case and unnecessary delay in the conduct of the trial. Cf. Rubenstein v. Kleven, 150 F. Supp. 47;
The Court does not ground the affirmance upon any finding that Mrs. Brown‘s conduct was actually disre-
The situation, it seems to me, cried out for “alert self-restraint” by way of consideration of the other available correctives, before the judge took the particularly harsh step of sending Mrs. Brown to jail for six months. The trial judge gave no thought to the use of the other sanctions and, in my view, his exclusive reliance upon the criminal contempt power was arbitrary in the circumstances. I would therefore set aside the conviction.