ULLMANN v. UNITED STATES.
No. 58.
Supreme Court of the United States
Argued December 6, 1955. - Decided March 26, 1956.
350 U.S. 422
Charles F. Barber argued the cause for the United States. On the brief were Solicitor General Sobeloff,
Osmond K. Fraenkel filed a brief for the National Lawyers Guild, as amicus curiae, supporting petitioner.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
On November 10, 1954, the United States Attorney for the Southern District of New York filed an application under the
“(c) Whenever in the judgment of a United States attorney the testimony of any witness, or the production of books, papers, or other evidence by any witness, in any case or proceeding before any grand jury or court of the United States involving any interference with or endangering of, or any plans or attempts to interfere with or endanger, the national security or defense of the United States by treason, sabotage, espionage, sedition, seditious conspiracy, violations of chapter 115 of title 18 of the United States Code, violations of the Internal Security Act of 1950 (64 Stat. 987), violations of the Atomic Energy Act of 1946 (60 Stat. 755), as amended, violations of sections 212 (a) (27), (28), (29) or 241 (a) (6), (7) or 313 (a) of the Immigration and Nationality Act (66 Stat. 182-186; 204-206; 240-241), and conspiracies involving any of the foregoing, is necessary to the public interest, he, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify or produce evidence subject to the pro-
visions of this section, and upon order of the court such witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecution described in subsection (d) hereof) against him in any court. “(d) No witness shall be exempt under the provision of this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section.”
In his application the United States Attorney alleged the following facts. On November 3, 1954, petitioner, pursuant to subpoena, appeared before a duly constituted grand jury of the Southern District of New York which was investigating matters concerned with attempts to endanger the national security by espionage and conspiracy to commit espionage. The grand jury asked him a series of questions relating to his knowledge of such activities, to his and other persons’ participation in such activities, and to his and other persons’ membership in the Communist Party. Petitioner, invoking the privilege against self-incrimination, refused to answer the questions. The United States Attorney also asserted that he deemed the testimony necessary to the public interest of the United States, and annexed a letter from the Attorney General of the United States approving the applica-
Petitioner, contesting the application, attacked the constitutionality of the Act and urged that, if the immunity statute be held constitutional, the District Court should, in the exercise of its discretion, deny the application. He filed an affidavit setting forth in detail experiences with agents of the Department of Justice and congressional investigating committees and other information in support of his plea for an exercise of discretion by the District Court. The Government in reply filed affidavits denying some of the allegations set forth in petitioner‘s affidavit.
On January 31, 1955, the District Court sustained the constitutionality of the statute. 128 F. Supp. 617. Its order, dated February 8, 1955, instructed petitioner “to answer the questions propounded to him before the Grand Jury and to testify and produce evidence with respect to such matters under inquiry before said Grand Jury. . . .” Petitioner appealed from this order, but the Court of Appeals for the Second Circuit dismissed the appeal on the authority of Cobbledick v. United States, 309 U.S. 323.
Petitioner again refused to answer the questions which the District Court had ordered him to answer. He was then brought before the District Court and, on stipulation that he had refused to obey the order of the court of February 8, he was convicted of contempt and sentenced to six months’ imprisonment unless he should purge himself of the contempt. Petitioner appealed to the Court of Appeals for the Second Circuit which affirmed the judgment of the District Court. 221 F. 2d 760. The importance of the questions at issue, in view of the differences between the legislation sustained in Brown v. Walker, 161 U.S. 591, and the Act under review, led us to bring the case here. 349 U.S. 951.
It is relevant to define explicitly the spirit in which the
“Our forefathers, when they wrote this provision into the Fifth Amendment of the Constitution, had in mind a lot of history which has been largely forgotten to-day. See VIII Wigmore on Evidence (3d ed. 1940) § 2250 et seq.; Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1 (1949). They made a judgment and expressed it in our fundamental law, that it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused. The privilege against self-incrimination serves as a protection to the innocent as well as to the guilty, and we have been admonished that it should be given a liberal application. Hoffman v. United States, 341 U. S. 479, 486 . . . . If it be thought that the privilege is outmoded in the conditions of this modern
age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.” Maffie v. United States, 209 F. 2d 225, 227.
Nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process.
No doubt the constitutional privilege may, on occasion, save a guilty man from his just deserts. It was aimed at a more far-reaching evil—a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies.
As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion. It is appropriate to read the conviction expressed in a memorable address by Senator Albert J. Beveridge to the American Bar Association in 1920, a time when there was also manifested impatience with some of the restrictions of the Constitution in the presumed interest of security. His appeal was to the Constitution—to the whole Constitution, not to a mutilating selection of those parts only which for the moment find favor.3 To view a particular
It is in this spirit of strict, not lax, observance of the constitutional protection of the individual that we approach the claims made by petitioner in this case. The attack on the
The Court considered and rejected petitioner‘s arguments, holding that a statute which compelled testimony but secured the witness against a criminal prosecution which might be aided directly or indirectly by his disclosures did not violate the
Petitioner, however, attempts to distinguish Brown v. Walker. He argues that this case is different from Brown v. Walker because the impact of the disabilities imposed by federal and state authorities and the public in general—such as loss of job, expulsion from labor unions, state registration and investigation statutes, passport eligibility, and general public opprobrium—is so oppressive that the statute does not give him true immunity. This, he alleges, is significantly different from the impact of testifying on the auditor in Brown v. Walker, who could the next day resume his job with reputation unaffected.6 But, as this Court has often held,
Again, the petitioner seeks to distinguish this case from Brown v. Walker by claiming that under the
We are concerned here only with § (c) and therefore need not pass on this question with respect to §§ (a) and
“The most that can be said for the legislative history is that it is on the whole inconclusive. Certainly, it contains nothing that requires the court to reject the construction which the statutory language clearly requires. Especially is this so where the construction contended for purports to raise a serious constitutional question as to the role of the judiciary under the doctrine of separation of powers. The Supreme Court has repeatedly warned ‘if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’9 Indeed, the Court has stated that words may be strained ‘in the candid service of avoiding a serious constitutional doubt.’10 Here there is no need to strain words. It requires neither torturing of language nor disregard of a clear legislative policy11 to avoid the constitutional question advanced by the witness. Indeed, to reach the constitutional issue would require straining of language. In such circumstances the court‘s duty is plainly to avoid the constitutional question.” 128 F. Supp., at 627-628.
Petitioner further argues that the immunity is not constitutionally sufficient so long as a witness is subject to the very real possibility of state prosecution. He urges that the statute does not, and constitutionally could not, grant such immunity. The immunity portion of the statute contains two parts. The first prohibits prosecutions and is worded virtually in the terms of the 1893 Act. The second makes explicit that the compelled testimony shall not be used against the witness in any proceeding in any court. Such a clause was construed in Adams v. Maryland, 347 U.S. 179, to apply to state courts. In Brown v. Walker, it was urged that the prohibition against prosecution did not grant protection against prosecution in the state courts. First finding that Congress could constitutionally provide such immunity, the Court then interpreted the statute:
“The act in question contains no suggestion that it is to be applied only to the Federal courts. It declares broadly that ‘no person shall be excused from attending and testifying . . . before the Interstate Commerce Commission . . . on the ground . . . that the testimony . . . required of him may tend to criminate him,’ etc. ‘But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify,’ etc. It is not that he shall not be prosecuted for or on account of any crime concerning which he may testify, which might
possibly be urged to apply only to crimes under the Federal law and not to crimes, such as the passing of counterfeit money, etc., which are also cognizable under state laws; but the immunity extends to any transaction, matter or thing concerning which he may testify, which clearly indicates that the immunity is intended to be general, and to be applicable whenever and in whatever court such prosecution may be had.” 161 U. S., at 607-608.
The Report of the Committee on the Judiciary of the House of Representatives supports the broad interpretation of the Act before us:
“Even though the power of Congress to prohibit a subsequent State prosecution is doubtful, such a constitutional question should not prevent the enactment of the recommended bill. The language of the amendment . . . is sufficiently broad to ban a subsequent State prosecution if it be determined that the Congress has the constitutional power to do so. In addition, the amendment recommended provides the additional protection—as set forth in the Adams case, by outlawing the subsequent use of the compelled testimony in any criminal proceeding—State or Federal.
“By the use of these two distinct concepts, the committee believes that the fullest protection that can be afforded the witness will be achieved.” H. R. Rep. No. 2606, 83d Cong., 2d Sess. 7.
Petitioner questions the constitutional power of Congress to grant immunity from state prosecution. Congressional abolition of state power to punish crimes committed in violation of state law presents a more drastic exercise of congressional power than that which we considered in Adams. In that case, only the use of the compelled testimony, not prosecution itself, was pro-
Petitioner also urges that if Brown v. Walker is found nondistinguishable and controlling, then that case should be reconsidered and overruled. He also urges upon us a “return” to a literal reading of the
We are not dealing here with one of the vague, undefinable, admonitory provisions of the Constitution whose scope is inevitably addressed to changing circumstances. The privilege against self-incrimination is a specific provision of which it is peculiarly true that “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349. For the history of the privilege establishes not only that it is not to be interpreted literally,14 but also that its sole concern is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of “penalties
The judgment of the Court of Appeals is
Affirmed.
MR. JUSTICE REED concurs in the opinion and judgment of the Court except as to the statement that no consti-
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
I would reverse the judgment of conviction. I would base the reversal on Boyd v. United States, 116 U. S. 616, or, in the alternative, I would overrule the five-to-four decision of Brown v. Walker, 161 U. S. 591, and adopt the view of the minority in that case that the right of silence created by the
First, as to the Boyd case. There are numerous disabilities created by federal law that attach to a person who is a Communist. These disabilities include ineligibility for employment in the Federal Government and in defense facilities, disqualification for a passport, the risk of internment, the risk of loss of employment as a longshoreman—to mention only a few.1 These disabilities imposed by federal law are forfeitures within the meaning of our cases and as much protected by the Fifth
Boyd v. United States, supra, involved a proceeding to establish a forfeiture of goods alleged to have been fraudulently imported without payment of duties. The claimants resisted an order requiring the production of an invoice to be used against them in the forfeiture proceedings. The Court in an opinion by Mr. Justice Bradley sustained the defense of the
“. . . any compulsory discovery by extorting the party‘s oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.” 116 U. S., at 631-632.
The Court apparently distinguishes the Boyd case on the ground that the forfeiture of property was a penalty affixed to a criminal act. The loss of a job and the ineligibility for a passport are also penalties affixed to a criminal act. For the case of Dennis v. United States, 341 U.S. 494, makes plain that membership in the Communist Party is a crucial link of evidence for conviction under the Smith Act, 54 Stat. 671, as amended, 62 Stat. 808,
The Court may mean that if disqualification for government employment or ineligibility for a passport is a forfeiture within the meaning of the Boyd case, Congress has lifted these disabilities in exchange for the witness’ testimony. Congress, I think, will be surprised to hear this. There is nothing in the legislative history that would suggest that Congress was willing to pay any such price for the testimony. If the disabilities which attach under existing law are forfeitures, the Court should strike down the Act. If Congress chooses to enact a new Immunity Act broad enough to protect against all forfeitures, it is free to do so. The Court seems to commit
We should apply the principle of the Boyd case to the present one and hold that since there is no protection in the Immunity Act against loss of rights of citizenship, the immunity granted is less than the protection afforded by the Constitution. Certainly personal freedom has at least as much constitutional dignity as property.
Second, as to Brown v. Walker. The difficulty I have with that decision and with the majority of the Court in the present case is that they add an important qualification to the
The “mischief” to be prevented falls under at least three heads.
(1) One “mischief” is not only the risk of conviction but the risk of prosecution. Mr. Justice Shiras, one of the four dissenters in Brown v. Walker, alluded to this difficulty when he declared that the immunity statute involved in that case was unconstitutional:
“... all that can be said is, that the witness is not protected, by the provision in question, from being prosecuted, but that he has been furnished with a good plea to the indictment, which will secure his acquittal. But is that true? Not unless the plea is sustained by competent evidence. His condition,
then, is that he has been prosecuted, been compelled, presumably, to furnish bail, and put to the trouble and expense of employing counsel and furnishing the evidence to make good his plea.” 161 U. S., at 621.
The risk of prosecution is not a risk which the wise take lightly. As experienced a judge as Learned Hand once said, “I must say that, as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and of death.” See Frank, Courts on Trial (1949), 40. A part of the dread in a case such as this is the chain of events that may be put in motion once disclosure is made. The truth is, I think, that there is no control left, once the right of secrecy is broken. For the statute protects the accused only on account of the “transaction, matter, or thing” concerning which he is compelled to testify and bars the use as evidence of the “testimony so compelled.” The forced disclosure may open up vast new vistas for the prosecutor with leads to numerous accusations not within the purview of the question and answer. What related offenses may be disclosed by leads furnished by the confession? How remote need the offense be before the immunity ceases to protect it? How much litigation will it take to determine it? What will be the reaction of the highest court when the facts of the case reach it?
It is, for example, a crime for a person who is a member of a Communist organization registered under the Subversive Activities Control Act, 64 Stat. 987,
The Taft-Hartley Act, 61 Stat. 146,
These are real and dread uncertainties that the Immunity Act does not remove. They emphasize that one protective function of the
The Court leaves all those uncertainties to another day, saying that the immunity granted by Congress will extend to its constitutional limits and that those constitutional limits will be determined case by case in future litigation. That means that no one knows what the limits are. The Court will not say. Only litigation on a distant day can determine it.
The concession of the Court underlines my point. It shows that the privilege of silence is exchanged for a partial, undefined, vague immunity. It means that Congress has granted far less than it has taken away.
(2) The guarantee against self-incrimination contained in the
A long history and a deep sentiment lay behind this decision. Some of those who came to these shores were Puritans who had known the hated oath ex officio used both by the Star Chamber and the High Commission. See Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Administered in the Ecclesiastical Courts in England, Essays in History and Political Theory (1936), c. VII. They had known the great rebellion of Lilburn, Cartwright and others against those instruments of oppression. Cartwright had refused to take the oath ex officio before the High Commission on the grounds that “hee thought he was not bound by the lawes of God so to doe.” Pearson, Thomas Cartwright and Elizabethan Puritanism 1535-1603 (1925), 318. Lilburn marshalled many arguments against the oath ex officio, one of them being the sanctity of conscience and the dignity of man before God:
“as for that Oath that was put upon me, I did refuse to take it as a sinful and unlawful oath, and by the strength of my God enabling me, I will never take it, though I be pulled in pieces by wild horses, as
the antient Christians were by the bloody tyrants in the Primitive Church; neither shall I think that man a faithful subject of Christ‘s kingdom, that shall at any time hereafter take it, seeing the wickedness of it hath been so apparently laid open by so many, for the refusal whereof many do suffer cruel persecution to this day.” The Trial of Lilburn and Wharton, 3 How. St. Tr. 1315, 1332.
The literature of the Levellers, of whom Lilburn was a leader, abounds in this attitude. In 1648, there was published a Declaration in the form of a petition, item 12 of which reads:
“That all Statutes for all kinds of Oaths, whether in Corporations, Cities, or other, which insnare conscientious people, as also other Statutes, injoyning all to hear the Book of Common Prayer, be forthwith repealed and nulled, and that nothing be imposed upon the consciences of any to compel them to sin against their own consciences.” Haller & Davies, The Leveller Tracts 1647-1653 (1944), 112.
In 1653, Lilburn published The Just Defence in which he wrote:
“Another fundamental right I then contended for, was, that no mans conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.” Haller & Davies, id., at 454.
These are important declarations, as they throw light on the meaning of “compelled” as used in the
The amending process that brought the
The compulsion outlawed was moral compulsion as well as physical compulsion. An episode in the administration of Governor William Bradford of the Plymouth Plantation illustrates the point. He sought advice from his ministers asking, “How farr a magistrate may extracte a confession from a delinquente, to acuse him selfe of a capitall crime...” The three ministers—Ralph Partrich, John Reynor, and Charles Chancy—were unanimous in concluding that the oath was against both the laws of God and the laws of man. Partrich‘s answer is typical:
“[The magistrate] may not extracte a confession of a capitall crime from a suspected person by any violent means, whether it be by an oath imposed, or by any punishmente inflicted or threatened to be inflicted.” Bradford, History of Plymouth Plantation, Mass. Hist. Soc. Coll. Ser. 4, Vol. III, 390-391.
And see Griswold, The Fifth Amendment Today (1955), 4; Morgan, The Privilege Against Self Incrimination, 34 Minn. L. Rev. 1, 22; Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L. Rev. 763, 769.
The Court, by forgetting that history, robs the
(3) This right of silence, this right of the accused to stand mute serves another high purpose. Mr. Justice Field, one of the four dissenters in Brown v. Walker, stated that it is the aim of the
“Did they originate such privilege simply to safeguard themselves against the law-inflicted penalties
and forfeitures? Did they take no thought of the pains of practical outlawry? The stated penalties and forfeitures of the law might be set aside; but was there no pain in disfavor and odium among neighbors, in excommunication from church or societies that might be governed by the prevailing views, in the private liabilities that the law might authorize, or in the unfathomable disgrace, not susceptible of formulation in language, which a known violation of law brings upon the offender? Then, too, if the immunity was only against the law-inflicted pains and penalties, the government could probe the secrets of every conversation, or society, by extending compulsory pardon to one of its participants, and thus turn him into an involuntary informer. Did the framers contemplate that this privilege of silence was exchangeable always, at the will of the government, for a remission of the participant‘s own penalties, upon a condition of disclosure, that would bring those to whom he had plighted his faith and loyalty within the grasp of the prosecutor? I cannot think so.”
Mr. Justice Field and Judge Grosscup were on strong historical ground. The
The Beccarian attitude toward infamy was a part of the background of the
society. The purer and more untouched the customs are, the greater the force of infamy.” I Theorie des Loix Criminelles (1781) 188. As de Pastoret said, “Infamy, being a result of opinion, exists independently of the legislator; but he can employ it adroitly to make of it a salutary punishment.”8 Des Loix Penales (1790), Pt. 2, 121.
It was in this tradition that Lord Chief Justice Treby ruled in 1696 that “... no man is bound to answer any questions that will subject him to a penalty, or to infamy.” Trial of Freind, 13 How. St. Tr. 1, 17.
There is great infamy involved in the present case, apart from the loss of rights of citizenship under federal law which I have already mentioned. The disclosure that a person is a Communist practically excommunicates him from society. School boards will not hire him. See Adler v. Board of Education, 342 U. S. 485 (1952). A lawyer risks exclusion from the bar (In re Anastaplo, 3 Ill. 2d 471, 121 N. E. 2d 826 (1954)); a doctor, the revocation of his license to practice (cf. Barsky v. Board of Regents, 347 U. S. 442 (1954)). If an actor, he is on a black list. (See Horowitz, Loyalty Tests for Employment in the Motion Picture Industry, 6 Stan. L. Rev. 438.) And he will be able to find no employment in our society except at the
“The battle for personal liberty seems to have been attained, but, in the absence of the din and clash, we cannot comprehend the meaning of all the safeguards employed. When we see the shield held before the briber, the liquor seller, the usury taker, the duelist, and the other violators of accepted law, we are moved to break or cast it aside, unmindful of the splendid purpose that first threw it forward. But, whatever its disadvantages now, it is a fixed privilege, until taken down by the same power that extended it. It is not certain, either, that it may not yet serve some useful purpose. The oppression of crowns and principalities is unquestionably over, but the more frightful oppression of selfish, ruthless, and merciless majorities may yet constitute one of the chapters of future history. In my opinion, the privilege of silence, against a criminal accusation, guarantied by the fifth amendment, was meant to extend to all the consequences of disclosure.”
It is no answer to say that a witness who exercises his
Finally, it is said that we should not disturb Brown v. Walker because it is an old and established decision. But this Court has always been willing to re-examine and overrule constitutional precedents, even those old and established. In Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), this Court overruled Swift v. Tyson, 16 Pet. 1 (1842), which had been a rule of decision for 95 years. United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944), partly overruled Paul v. Virginia, 8 Wall. 168 (1868), which had been decided 75 years previously. In Kilbourn v. Thompson, 103 U. S. 168 (1880), the Court rejected some of the grounds of decision in Anderson v. Dunn, 6 Wheat. 204 (1821), which had been standing for 59 years. Brown v. Walker, decided by a bare majority of the Court and now 60 years old, has no greater claim to sanctity than the other venerable decisions which history showed had outlived their usefulness or were conceived in error. And a rejection of Brown v. Walker would certainly be far less disruptive of a system of law than was the overruling of Swift v. Tyson, which affected the trial of every diversity case in the federal courts.
Notes
“(1) in the case of proceedings before one of the Houses of Congress, that a majority of the members present of that House; or
“(2) in the case of proceedings before a committee, that two-thirds of the members of the full committee shall by affirmative vote have authorized such witness to be granted immunity under this section with respect to the transactions, matters, or things concerning which he is compelled, after having claimed his privilege against self-incrimination to testify or produce evidence by direction of the presiding officer and
“that an order of the United States district court for the district wherein the inquiry is being carried on has been entered into the record requiring said person to testify or produce evidence. Such an order may be issued by a United States district court judge upon application by a duly authorized representative of the Congress or of the committee concerned. But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is so compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecutions described in subsection (d) hereof) against him in any court.
“(b) Neither House nor any committee thereof nor any joint committee of the two Houses of Congress shall grant immunity to any witness without first having notified the Attorney General of the United States of such action and thereafter having secured the approval of the United States district court for the district wherein such inquiry is being held. The Attorney General of the United States shall be notified of the time of each proposed application to the United States district court and shall be given the opportunity to be heard with respect thereto prior to the entrance into the record of the order of the district court.” See Chinard, The Commonplace Book of Thomas Jefferson (1926), 298 et seq.
*Trainer sur la claie was the means used to drag the condemned to execution. The same thing was done to the bodies of suicides. For a description of this, see Saint-Edme, Dictionnaire De La Penalite Dans Toutes Les Parties Du Monde Connu (1825), Vol. 3, 242-244.