United States v. St. Pierre

316, 114 Schnitzer, ap 167 Or. Cf. v. never Kiddle be taken. been The doctrine really P.2d 117 P.2d 983. plied peril. sudden except in cases of applied as Particularly has it been never been charge But such a should if contributory negligence here to excuse the quali requested given, charge was one, who, failing the caution to use by requiring fied as should have mo was him before the available to neg emergency prioy without arisen impact, ment unable finds himself Carpenter ligence Campbell, on the part of Line, use it Adm’r Bell then. Feck’s v. Co., Campbell 159 Iowa Automobile Inc., Ky. S.W.2d 225; Wells, N.D. 140N.W. Bolton point, interestingly case discusses 791; Gifford, 127 Cal. N.W. Dodds v. question posed re In that Line, here. App. Alaga Coach 16 P.2d jecting claim issue here that the made Inc., Foy, Ala. So. peril charged, sudden should be Smith, La.App., 197 So. Prevost said: Gajewski Lightner, 19 A.2d Pa. respectfully 355. I dissent. “As a matter of fact said persons injured in most accidents otherwise, peril, with a confronted sudden since, rule, as a injury there would be no peril sudden, injured were not party ordinarily have time to avoid it. appears qualifying to us that a in- struction of the character contended necessary, and that sudden emergency applies, only rule dis- whore the evidence UNITED STATES PIERRE. v. ST. closes one became an emer- aware of No. gency rapid and was to a al- choice of ternative courses action order Appeals, Circuit. Second Circuit Court of jury, avoid the accident in the and the Dec. evidence, state of the light subsequent events, might reach conclu- sion adopted that the course of action an unwise one. such circumstances qualify sometimes becomes usual instructions an instruction defin- ing right such one confronted * * * emergency. an "In the instant nothing case there is deceased, evidence indicate that the Feck, ever realized was confronted peril with a sudden emergency. farAs as the goes may evidence not have seen the truck with which he collided. show be wholly that he fails came emergency aware such as rapid him ato choice between two or more courses of action in order to avoid collision, being appears and this true it to us that there probability was no jury believing pursued that he an unwise or negligent attempting course to avoid injury. We reach the conclusion that the circumstances disclosed the evidence ordinary contributory negligence in struction, when considered connection ordinary with the care suf instruction, ficient and that the trial court committed no refusing modify error in requested it as appellant.” ours.) (Emphasis crime, his refusal to disclose the name person money belonged to whom contempt. we held a the sen- to be After expired, again tence respondent had was brought jury, once grand before more directed to tell he had the name which disclose, before refused he re- again time, however, fused. appears it that This money which he took out- embezzled he York, sup- side the State of New and that plies the lacking po- element His before. sition is testimony that his grand before jury was confession, requiring corrobora- tion in order make out a case which could a jury (Daeche v. United States, Cir., 566); since F. person whom he withheld money very probably would be a corroborat- ing witness, the identification enable prosecution complete its case. A preliminary question arises at the out set as to appealability order, precisely circumstances were the same 2 Cir., as in the Cusson, case United States handed down December 2, 1942, and we refer to our discussion disposal point. for the Whatever may have been original limits of privilege (Wigmore, City, Broderick, York of New Edward V. 2261), Hitchcock, since Counselman appellant. S.Ct. 35 L.Ed. Correa, Mollo, Mathias F. Silvio J. it is settled in federal courts that witness City (Keith York Atty., both of New S.U. compelled cannot be anything to disclose Atty., of York New Brown, Asst. U. S. that will “tend” incriminate him, wheth counsel), appellee. City, of er or not the answer an admission CLARK, HAND, L. Before one the constitutive elements of the FRANK, Judges. Circuit crime. The name of the victim would cer tainly “tend”;' so it will furnish a witness whose certainly will assist HAND, Judge. Circuit L. prosecution, whether or not uses the re it appeals from Pierre, respondent, St. spondent’s confession. need there He court, sentencing the district order fore invoke the doctrine that a witness’s contempt refusing to for criminal him necessary corroboration is amake case before a question put to him answer against him, persuade or us that his con refused to answer He had jury. grand fession is admissible him. Unless same once substantially the he privilege by waived his had al what he thirty days’ im- and had sentenced said,'it ready protected against divulg him court, and this appealed he prisonment; victim, ing the regardless name the rec- the. conviction affirmed else; anything only and the issue is that. tending any not contain did ord a federal of- had committed prove Although opposite he formerly was Pierre, St. probably England States v. (Dixon the law of fense. grand Vale, minutes P. East v. Chapman, F.2d 979. Car. & us, although 570), showed & then before Car. P. since decision of money having Exchequer embezzled Chamber he confessed divided court in Garbett, appropriating Kirwan, Regina Carrington it in- entrusted to & person 474, 495, disclosure, ful, delivering it however stead intended, did show effect waiver the witness privilege; whom it was may stop pleases. of New where In Brown v. taken outside State Walker, to a federal York. As this held, assumed, though not rul- assumed the basis of their held, ings, witness “discloses the disclosure of act or trans- if the full action “make a waives the all details criminal connections” he disclosure”; particulars “connec just what those which will elucidate be, transaction, In Arnd act large. although waives tions” must was left at 26, 71, nothing McCarthy, 254 41 S.Ct. else. We deci- stein v. U.S. cite some these Arndstein, them, un- 138, McCarthy margin.1 sions in the In 65 v. none of L.Ed. 1023, 355, 562, 266, People, L.Ed. less it 43 S.Ct. 67 be Foster v. 18 Mich. any question presented suggestion whether a bank of the condition any when rupt’s his schedules waived must disclose all or 21, facts,” a of the was examined under sub. “incriminating he § 44, Act, a. Bankruptcy Perhaps 11 sub. U.S.C.A. meant a of the crime. constituent § not, People, supra, Campbell Judge It and that he in Foster was held that did v. disposition refuse to answer as to the did have such condition in mind when he a apparently property. The treat “This of his said: distinction between cases as a ed the schedules and the examination where a witness has or has not furnished himself, question waiv single proceeding, else criminate sufficient Hollis, (Wigmore clearly recognized er could have arisen 2276 in Amherst v. 9 not ; 451, ; 107, Odell, * p. Ed.) the essence N. (4) 3rd of N.H. Coburn v. [30 ** 540, ordinary 540], is that witness” H. 10 Foster which hold decision “an does, waive his “where the made a decisive dis- not he has once * * * previous closure, ac disclosure is not an privilege ceases.” There is noth- guilt incriminating tual admission of or ing in the which he cited decisions to bear facts,” 359, 563, (262 page out; U.S. 43 67 equiva- and “criminate” is not be, 1023). may though we doubt “convict”; lent of have said of fas’we it, the court meant that a witness Arndstein, supra, 355, McCarthy 262 v. could a not be cross examined about fact to 1023, 562, it is not im- only he had testified and portant mean, here what he did because'if criminate, “tended” unless it was one of imposed any upon waiver, condition those “ultimate” constituting The condition here fulfilled. Certainly spite its citation crime. respondent obliged to take here is a still more —in Garbett, Regina supra (2 v. & K. Car. position; extreme he must maintain that 474) is clear that the court did not he waives he must — it up mean to set English only guilt, doctrine. More admit not he tell over, it seem securing not have meant that all which will he knows aid nothing support admission of short of the whole evidence a verdict. suffice; crime would else it complete would not a have Until he has revelation as made spoken disjunctive. in the may compelled However that as this he not be to disclose be, pass may point here, we need not on already the details he has of what respondent admitted the whole There is the faintest in uncovered. not upon crime and stands the fact that timation of such a notion books un . nothing only phrase, waives The other federal less read “sufficient it be into Buckeye decision found People, have evidence to criminate” Foster v. Powder - Co., D.C., v. Hazard Powder supra, 205 F. 18 Mich. 827, in which there was no discussion. country developed The law this has question refinements; has aup come The number of without such irrational upon injustice times in the state courts which have allowing either rests the obvious 1 Mitchell, 1841, 372; 304, 842; er, 1932, 18 Ill. Low v. Me. 347 179 Fos N.E. Hollis, 1837, 107; People, 1869, 266; 9 Amherst N.H. ter v. 18 Mich. State 348, 1851, Nichols, 1882, Foster, 23 N.H. 55 State v. of Minnesota v. 29 Minn. 191; 153; Odell, 1855, 357, Mayber Coburn v. Lombard Am.Dec. N.W. 540; Pierce, 1853, 674, ry, 1888, 271, Foster v. 24 Neb. N.H. N.W. 437, 437, 152; 234; parte Am.St.Rep. 1897, Park, Mass. Ex Cush. 59 Am.Dec. 1879, Pratt, 300, Commonwealth v. 126 Mass. 40 S.W. Tex.Cr.R. 462; Trider, Am.St.Rep. 835; parte 1887, 1915, Adams, Commonwealth Ex 180, 510; 277, 1044; People Mass. N.E. Evans v. 76 Tex.Cr.R. S.W. O’Connor, Freshour, 174 Mass. 55 Cal. N.E. Ameri Am.St.Rep. 316; parte Savings Sawicki, Ex Sen & Loan Ass’n v. ior, 37 Fla. 19 So. 32 L.R. Wash. P. People, Samuel A. P. 717. 379, 45 N.E. Bak- Ill. Stevenson v. only ent’s spoken at victim was of what have a detail who need not already perhaps all, what confessed. Cases he will decide how far disclose testimony put far he arise where part, how forward as he has chosen tell veracity vague general waiver raise tested was so to let his refuse specifications adversary it is whether can be questioning. cases on, cross it, truly amplification said to hut if this hard see how trial could Certainly party no such exists who embarrassment here. allowed. profit should the witness called Order affirmed. says, small what he and it is relief disregard judge to admonish the FRANK, Judge (dissenting). Circuit has no what witness heard. Pierre, voluntary 1. St. as a tenderness, unless he just for such claim subpoena, but under confessed before he before has learned of grand federal embezzled jury that he speak, if the law and not then consents to money person from a not known to the anyway. knowledge it charges him with government, and name he whose did not privilege is to that the It must conceded be divulge, also he had carried that and that suppress truth, that not mean does asked, money across state lines. When it; although garble that it is a to grand jury, for the name of before evidence, parties deprives the its exercise answer, person, asserting he refused one side what it should not furnish privilege. Unless Pierre constitutional St. deprive may the other false evidence and be compelled question, the is to answer that imposition. detecting the any means of violating government, if is tried for he himself is for a witness protect time' Act, 18 Property National U.S.C.A. Stolen him; presented to is first when the decision seq.,1 out case 413 et cannot make more, anything nothing and more he needs jury, and go which will him at his puts instrument dis mischievous cannot, therefore, be convicted and he . posal that this mischief less It is true But, punished com- crime. for he proceeding inquisitorial like flagrant in an pelled question, he will to answer jury; grand but the inquest an before possession evidence protection in no better claim has in such government, enable the will other; protec one case than ap- go jury. it proceeding, to So a pears weight in the scale. only tion relevant is the compel to answer that this, any other using like The result of compel give him to evidence is to deprive people privilege, is to of evidence crime without which his for that punishment available; be otherwise at impossible and with which it becomes necessity, disputes best a disastrous for possible. ought far can be settled so be such is the 2. To make it clear that truth; resort to whole here, note follow situation it is well to ceases, only it is shock excuse darkness grand ing: (a) before the A confession light. none ing shut out Since (b) “judicial” jury is confession.2 not a suggest distinction be decisions Therefore, cannot, without the confession adversary inquisitory proceed tween corroboration, against St. be used extrinsic ings, surely to so un should not resort may Pierre. The corroborative deplorable an innovation. slight weight, there must be some “circumstantial,” evidence, go need no further even if We the such corpus than hold at least after Daeche United at bar as to the delicti. case 566; States, Cir., all has confessed the elements a witness F. Cohen 835, 836; crime, details; States, withhold the F. United Litkofsky hardly necessary States, Cir., 1925, to labor v. United States, point even in narrowest Forlini v. United sense the F.2d identity ;3 respond- Cir., 1926, of the 12 F.2d Forte v. disclosure 959; Wharton, statute makes a crime That 271 P. Crim Cr. money transport (11th ed., 1935) embezzled in interstate inal Evidence 3 Judge Learned Hand who commerce. wrote the Williams, opinion Fed.Cas. sat States in the Daeche case in the 2 United 16,707; Stevenson, indicated, where cit- State v. Or. Forlini ease- No. ing Bow there 193 P. State v. Daeche 110, 166; independent proof 'corpus man, 294 Mo. of the S.W. “some Hularkey State, 199 Wis. 225 N. delicti.” State, Stewart Okl.

W.

Sál (b) The alterna- privilege.4 tion Ill, of the States, App.D.C. position what amounts to gov tive is that (c) Here A.L.R. has no rational rela- us, no surrender or waiver ernment, on the record privilege. evi tion its such corroborative evidence. For dence, confession, will show other than the course, position, The latter is so arbi- New merely from that St. Pierre traveled adopt trary that we should not it unless return, Canada, accompanied York to by woman, prepedents us no .leave other choice. $5,000 in in his and with cash precedents There authoritative call- alone, evidence, possession. standing Such arbitrary ing for such at- irrational inference, give reasonable rise to no And, my colleagues titude. nowhere of the Na slight, of the violation however it, adopted state that they have assume If, Property (d) Act. how tional Stolen have not. ever, compelled to disclose St. Pierre Accordingly, majority opinion I read the person whom name here position as based on the likelihood, embezzled, government, in all arbitrary must be a rational and not an go to evidence to have sufficient then relation (1) between and pur- character then, by calling jury; the embezzlee pose (2) the conduct of (1) it can as a either the witness which constitutes a surrender or waiver. On that jury without the use of the confession basis, the discussion jury by obtaining (2) go from my colleagues’ opinion of what consti- the that witness corroborative evidence tutes a surrender or privilege waiver the of necessary make admis to confession the implying must be conception taken as their sible. And, of the nature of privilege the itself. here is this: problem Accordingly, the since hold that there is a waiver when subpoena before a witness, under Can a gives witness involving a the dis- against ob- compelled, grand jury, be grace admitting the commission of a privilege constitutional jection, based on crime, even when that evidence does not ques- self-incrimination, answer a to against possible make punishment, the neces- to that answer (a) without the tion when sary implication my colleagues’ opinion govern- possible for question it is not privilege is this: The not is that of free- com- punish him for the ment to convict compulsion dom from give testimony the answer to (b) crime mission of a which will punishment lead to one’s possible probably make question will crime; the privilege is that of freedom I think punishment? such conviction compulsion give testimony which say No. that we should disgrace will involve the of admitting to the con- My here arrive at colleagues criminal conduct although saying They trary do so conclusion. does not danger punishment. one in Pierre, confession, of his that St. concerning the privilege, The decisions privilege. The character of “waived” history, contrary. demonstrate the its of the waiver or surrender effective an punishment disgrace mere Not is the important. thus privilege becomes concept. The existence of key a likelihood waiver or discussing indispensable the doctrine of punishment is to the ex- privilege, po- one of two privilege, surrender of is its istence of the basic ration- adopted: (a) again, be The first Again describing sitions must ale. position that there is a rational relation privilege, expressions is the courts use such privilege and “protection against between the nature of the be- [to witness] brought by what constitutes a waiver or surrender of ing means his own evidence law,” privilege; penalties the conduct a witness within the or “he convicted, otherwise, amounting abandonment of and if answer, plainly must be inconsistent with his asser- he had refused to he could not relating gener Sugar Cf. cases Pine Lumber “waiver” Co. v. Klamata Riv- ally constituting Improvement Co., C.C., to the effect that acts er Lumber & right Smiley Cir., 1897, Barker, waiver of a F. must be inconsistent right. with the existence of the Cham 83 F. Spark Plug pion States, Mason Co. v. Automobile Sun v. United Co., Cir., 1921, dries 273 F. 1198, quoting Cockburn, ap- Co., J., Cable v. United States Life Ins. Ch. with Pokegama proval. 111 F. 1807, Marshall, later, years C. Eighteen Where convicted.”6 possibly have Burr,9 using lan- absent, J., Aaron in the trial of punishment possibility instance, bar, the case at where, guage inapposite not privilege vanishes —as seem, then, said, immunity against “It would “absolute affords statute give witness to compel to which ought never to offence prosecutions future discloses a fact relates,” pardon or answer which or a part of a com- and essential of limitations form a statute running laws”; punish- punishable by the which from' crime the witness pletely shelters elicited, which speaking of facts ment for the crime.7 say, of itself “That fact he went on disgrace that not History also shows all unavailing, but other might be dan- admitting conduct but the criminal While insufficient. it would be without at the heart punishment ger of his own within remains concealed know, As we privilege.8 thence, safe; it from draw he is bosom consequence struggles of Puri- a tans, prosecution.”10 exposed he is to a century England, in 17th Commission, court, then, the ob- High well-settled that ecclesiastical punish against ject protection them for sought violations heresy. compulsory against prevention punishment, Puritans law involving conduct at that time never denied that law was disclosure criminal punishment. resisted the efforts of the Accord- disgrace valid. But but without High testimony by given without using ingly, Commission compel give disgrace ex evi- an admis- objection, leading oath officio them crime, conduct, evi- alone dence themselves of that of criminal cannot con- sion indispensable dence privilege. their conviction stitute- a waiver of the Before punishment Puritans, waiver, as law-breakers. The there is such further, and, testify objection, who insisted that ex oath officio was without unlawful, disgrace danger punish- considered it no com- him in of heresy; they proud merely mit the of crime If ment. the witness gone heresy; if, point of their pun- disgracing without fear of the himself of the ad- ishment, they conduct, could have confessed to mission then a com- of criminal acts, pulsory what law denounced as of further facts which heretical disclosure they glad punishment would danger have been do so. him in of What can- sought reasonably they in their avoid attacks on the not be said to the disclosure procedures High of the of mere “details.” Commission was punishment for violation aof substantive pun about the center cases All the 5. law which considered abhorrent. No that seem It would ishment factor. days one those dreamed saying of that criticism, my col disguised not-too-well self-incrimination was wrongful at common remarks of opinion, of leagues’ beginning law. But the Rev- the Puritan Walker, 161 Supreme in Brown v. Court brought olution about destruction 819, 644, 591, 597, L.Ed. 16 S.Ct. U.S. statute, 1641, High of the Commission 71, McCarthy, 254 41 S. U.S. Arndstein and, it, with of the offensive oath. sen- The 138, McCarthy 26, Ct. far, against spread and, timent the oath be- 369, Arndstein, 355, 562, 43 S.Ct. 262 U.S. long, privilege fore self-incrim- 1023, my colleagues’ stems from L.Ed. recognized ination was at law. common pivotal keep eye their on that failure is, think, And privilege punishment. When, incor- factor Amendment, disregard Fifth their factor through the porated, because Constitution, for St. Pierre pre- aimed at hold a decision was still our an “irrational refinement” punishment of a witness on the would be here vention of answer, compelled testimony. that an with privilege, and his own basis Hitchcock, g., See, Self-Incrim Counselman Court’s Construction e. Clause, (1930); cf. ination Mich.L.Rev. S.Ct. States, App.D.C., Walker, United F. Brown v. Wood U.S. L.Ed. 265, 271, 1318. A.L.R. 2d 819. Burr, preceding States v. cited in note. Fed.Cas. cases See 14,692e. Usher, pages 38, g., See, No. The Rise and Fall e. quoted language ap High (1913); Usher, with Commission This Hitchcock, proval English in Counselman v. Reconstruction The (1910); (3d Wigmore, 35 L. Evidence Church Corwin, Supreme ed.) Ed.

8áS immunity impossible, ment for crime from which punishment out his exculpate completely statute him. jeopardy, does not put in and with which he will “only detail would be the disclosure here, sup- us high-light To the issue let confessed.” already of what he has pose that a section of the National Stolen substantially Property fol- provided punishment fac- Act Only pivotal if that lows : of the “No one be convicted Supreme Court is borne in tor mind do property transporting embezzled crime of dealing so-called decisions with intelligi- in interstate commerce on the basis of privilege “waiver” become supra, admitting McCarthy, own evidence the commission ble. In Arndstein v. Arndstein, supra, also testifies to McCarthy the Su- crime unless he prop- person had name of whom the preme Court, deciding erty Clearly, waiver, ap- under such with was embezzled.” twice cited no such gave colleagues) statutory provision, proval annoyance my a witness who (to Pierre exactly given St. People, 18 Mich. the case of Foster v. compelled, against his here could not be Campbell the test of Judge There said that person objection, name of the to reveal the been a “waiver” whether there has withheld, unlawfully money whose fur- “has or has not whether the witness because, as to the name him- absent his evidence criminate nished sufficient evidence to person, punished, of that self,” he could not be is effective and that waiver testimony, while his as to that only when “decisive” privilege gone when and name, punishment. possible make made a decisive the witness “has once here, And and “deci- so there is no “waiver” disclosure.” “criminate” What puzzle yet Pierre him- St. has not “criminated” mean in that seems to sive” context puzzle if self. Unless doctrine of “waiver” is my colleagues. But there is unless, arbitrary key utterly punishment recognized as the fac- and irrational — is, rationally Campbell, indeed, is unrelated Judge made clear tor. context, waiver, for, privilege nature of the sur- meaning, same in the —the “criminate,” render, uses, interchangeably or self-removal must, phrases exposing result- himself” and like the removal “convicted statute, immunity directly charge.” ing “Crimi- from an af- himself a criminal “to immunity century punishment. Puritans and fect An statute (as nate” the 17th century Rights Bill removes our cancels the because it successful 18th punishment; knew) in dan- a “waiver” cancels well means to be advocates creates the punishment. A witness has not because the witness ger of testimony, danger punishment by giving and has made a “criminated” himself of objection, until can be used disclosure unless and he without his which “decisive” has, evidence, objection, given against him convict him. without his to crime, his of a bearing on commission settled, is well and this court has possible govern- which will make it held,12 prop recently may that a witness punish through him for that crime ment to question erly refuse to answer a on the evidence. use of that ground answer will incriminate testimony him, face though nature of “decisive” on its 7. The even harmless, constituting setting a “waiver” illuminated is where such possible relating step im to the so-called that the answer would be “a .the decisions It has been held a crime.” A witness munity statutes. often the disclosure of not, statute, therefore, beginning may, such a at the of a series beyond precise questions, perceiving dangerous inch ex where one removed lead, If, immunity punishment they may privilege. assert tent early however, re fails to do so statute. The witness is he granted and, although questioning which he give evidence bears on his course quired to which, objected, then have answers some the crime for under commission statute, tendency immunity pun have a questions he cannot be which to in the ished; him, constitutionally deprive answers do cannot be those criminate refusing of later to an give evidence which will him of the compelled to clearly punish questions which further more to his conviction swer to lead tend supra; Hitchcock, see also 132 F.2d United Counselman Weisman, Cir., supra. Walker, 111 F.2d States v. Brown Cusson, 2 States Dec. punishment. danger That tion in a the cited in him in crime.14 It is in some of held McCarthy plainly circumstances, cases the doctrine those Arndstein, There, supra.13 suit, party in an examina- to fairness the other bankrupt, some the required, tion of questions, he had answered can then be over his objection, “partial go give disclosures” further made to the “de .which presumably might transaction, have re- tails” and which of the criminal but can required fused tended in not be to answer into matters not danger germane him subjecting concerning direction of punishment. to those which he had previously that the fact of testified.15 The court held In most of such questions cases there object (a) those are two elements : The wit his failure to ness, objection, “partial given disclosures” without having of his made testi mony deprive right persons an- in a suit between did not two other questions subsequent knowingly per swer went still and which aid of one of those sons; directly danger accordingly, further permitted by and more into he is not case, injustice zone. In the instant St. Pierre doubt- conduct to create to the other party successfully party which less could have asserted his would result if unable long he admitted that he to examine the witness further credibility transported property had embezzled order to show his lack of or that told, story, weigh it in interstate commerce. to do so his failure the full would not But deprive party. put, privilege against cannot him of As it is sometimes point right, pretence at that “A stopping became witness has no under where the further ques- prejudice party privilege, an answer a claim of by obvious that tion narrative,” garbled as to name of the embezzlee one-sided or allowed, danger punishment, by any arbitrary him in since not be “should previous yet partial privilege, his a situation where answers had not created use of his make a state could, ment party.”16 of either prejudice of facts to the on the basis of his earlier answers and other And stress is sometimes laid on it, procure giving evidence available fact that when thus punishment. testimony party, conviction “knows in favorable to one case beginning that his opinion, support majority 9. The expose charge.”17 him a criminal its conclusion that St. Pierre waived or cases, must (b) Even in such first privilege, (sev- surrendered the cases cites has, extent, some shown that the witness merely which eral of contain dicta on the point where he has crossed the line to already put are, subject) recog- punish danger himself in be, significantly nized to different from the through the use of own testim ment ony.18 case. The facts in instant those cases may be summarized as follows: In a suit party, the witness is not a English Regina he is leading to.which testify by and, parties one Garbett, called to without 2 Car. & K. Cox Cr.Cas. objection, gives testimony 474,19 contrary although the American party obviously referred, will aid just who called cases to which I have him; testimony, Garbett, given illuminating. his thus without ob- nevertheless There participá- jection, Bragdon tends to show his own in a civil action between 13 referring my g., Mitchell, 372, 374; In to this col Low v. 18 Me. erroneously state, leagues think, O’Connor, I that Evans 174 54 N. v. Mass. Am.St.Rep. 816; treated and the the the E. Lombard v. schedules they single pro Mayberry, 674, 675, 691, as if examination 24 Neb. 40 N.W. McCarthy ceeding; Arndstein, 271, Am.St.Rep. v. U. People, was Foster S. Mich. appeal, there, Odell, a second as distin see also Coburn v. 30 N.H. guished prob appeal, Pierce, from the earlier the Foster 11 Cush. . questions was whether lem answered Mass. 152 Am.Dec. bankrupt People, supra; Ms earlier examination the Foster v. Coburn v. 540, 556; Odell, parte a waiver. constituted 30 N.H. cf. Ex colleagues 14 My are, think, Park, I in error Tex.Cr.R. S.W. they Am.St.Rep. state that none of the cases suggests any supra; People, cite distinction on the Foster cf. Amherst given ground Hollis, the witness has testi- 9 N.H. 107. adversary mony proceeding report in an favor- in 2 Cox is some- Cr.Cas. ample. to side. able one more what qualification, see, last As to the e. assuming wholly Booth, party, the case is was not a Garbett which Garbett wrong, contrary appeared gave and that American deci- as a rule, state Booth, the sions the those cases have defendant. correct favorable to application For, my colleagues testimony, here. as course of he disclosed recognize, themselves factor he was involved of unfair- which tended to show that compelled party ness to the suit is not here forgery. in a then one The court note, present; objection, on cross-examina- in- him over his themselves plaintiff, pos- stant case is which tion to answer not one in it can counsel for the sibly testimony question he had commit- be said the direct whether that St. Pierre’s thus Subsequently given forgery. (to quote majority opin- ted a far he was was and, crime, ion) on trial in that criminal such as to “furnish with for that one side what trial, may question deprive as to the admis- false evidence the other arose sibility compelled imposition.” detecting him an- of means of Even swer in if we ignore the earlier civil suit. The sole were to the fact argument testimony government given made St. Pierre’s in an suit, admissibility adversary investigatory evidence was that Garbett, action, grand waived nothing the civil there is proceeding, privilege knowingly given because he had record show before us to that his testimony, one side.20 given, favored Lord thus far is favorable to anyone, apparently Denman who favored the or admis- that his failure to answer the evidence, colloquy question consideration, sion of the in a asked: here under states, terms, general prejudice “Where a witness in its efforts to verdict, anyone what prosecute will entitle his friend to a other than St. him- Pierre particulars and is then asked as to the self. transaction, he, by claiming this agree my that, colleagues with in cases privilege, prevent other side Garbett, Regina like is room for there particulars, knowing those saying where testifies know- a witness very important in contradicting effect ingly suit, party in aid of one to a right explaining pre- general evidence he had ques- to assert' the bar privilege further viously given?” may put tioning party the other at the Regina disposal v. Garbett been twice cited “mischievous in- witness a approval by Supreme with our Court.21 strument.” m now us But the case necessarily That does not mean that no such mis- mischief. The sole has, qualification, rule here, any, of that case without chief if there inheres in the adopted by Supreme Court, al- privilege constitutional itself. And it though go it does to show that that court forgotten should not be not inclined opposition compul- to narrow or arose out of Puritan But, sory broaden the doctrine waiver. adversary even disclosures not suits argument going which, In the what course of the on. states facts He government, only true, it was said “It would consistent with his hav- ing forged himself; should be monstrous allowed the bill and it is not just enough party question pressed state until he is ‘Is benefit * * *; serve, forgery,’ protec- came no more it a asks for that he pro what intended for his tion make of the court and is told he must an- engine decep every tection an falsehood and swer. He had hitherto answered garble tion. He can have no with- had been remonstrance, the evidence to of one out the unfair benefit counsel for injury plaintiff equally right party, unfair had a into all * * * purposes circumstances, the other should al other not be He * * * arbitrary privi explanation use of his This lowed is not a lege any partial facts, difficulty a statement case in which will be make * * * prejudice party drawing line, in of either since the witness * * * fully was Can there be doubt that Gar he was aware of ”* * * gone give. (Emphasis bett had render it about so far as to nec add- essary justice ed.) purpose of he upon should be to state called the whole 21 box, McCarthy, 71, matter? He was into Arndstein v. 254 U.S. 138; McCarthy question being, 72, 26, 41 a certain bill 65 L.Ed. whether S.Ct. 359, 355, exchange handwriting Arndstein, 358, in v. 262 U.S. 43 562, .court, Re is in and hnows S.Ct 67 L.Ed. 1023. defendant. 846 inquisitional proceed- sidered preliminary testimony be- in as a narrative of his case, ings,22 that, grand jury. the fore the In circum- in the instant those stances, that, question jury grand fairly room it thus in cannot be said was testifying judge, where his to have he waived permitted the witness is not before the trial Zwill- present. privilege. his man, Cir., Cf. v. counsel United States 803, 802, 2 108 F.2d 804.24 Buckeye Power v. Hazard Powder Co. Up discussing 11. to now I had Co., D.C.Conn., 827, the ma- cited in 205 F. however, is, following There “waiver.” think, is, point. jority opinion, in not phase of this all in not at considered There, damage under a treble suit majority opinion, waiver as to which Act, 1-7, note, 15 Sherman 15U.S.C.A. §§ noted, Since, irrelevant. as above stated, question, in answer to a grand “judicial,” jury St. proceeding is objection, he written an without cannot, due Pierre’s confession under the adversely (which evidence) article reflecting was in clause, process pro be in a used criminal upon plaintiff. He then ob- ceeding against it volunt him unless was jected questions further answering con- ary.25 it was showing that The burden of article, cerning his written on having voluntary it government,26 on the expose might ground the him that the answers here.27, We showing has made no such prosecution for libel. The to criminal should, therefore, on the deal with this case that, already he had admitted court held assumption be that the confession cannot article, writing the waived his he had we can against used take St. Pierre. But privilege. the confession the facts disclosed Of course there is need consider into, “setting” to examining account person cases in which a himself those on embez see whether his disclosure voluntarily proceeding trial in a criminal him. zlee’s will incriminate name tend witness; it becomes a is well settled so, apparent If we it is that the answer do (to generally) taking state rule effect, will have that forbidden the witness-stand the defendant in a crim- leads with give such inal any suit abandons his as to_ confession, it make out a using the out matters in issue.23 Accordingly, him. on against case authority re alone, our under basis below, proceedings . 10. In the St. Pierre Cusson, cent decision United States v. grand jury denied min- access 2, 413, 1942, should 132 December F.2d light utes. In the our decision United reverse. 979, Pierre, Cir., 2 v. States St. 128 F.2d him, misunderstanding, was therefore I think order 12. To avoid question my privilege, to raise the show, springs to it desirable to disclose way, following some other that he remarks dissent. my charged with a federal offense. To make to be taken at all directed proof, apply, he colleagues, took stand before the to whom do not judge; testimony approach my

trial was there designed con- as clear own to make Ed. Ed. Ct. 3 refusal 223 U.S. 448; S. stituted Chambers C., 25 Ziang Sung ^[22] 23 See, punished 128 F.2d grand 988; 472, Cf. Wood 09 to answer e. 84 L.Ed. Lomax 494, waiver, Brown v. U.S. for that event, g., Florida, 265, v. and, Raffel 46 S.Ct. Powers v. 629, Wan v. United United 271, if this note 716; Canty Texas, prior therefore, 60 309 Mississippi, v. United 141 S.Ct. S.Ct. U.S. refusal. given States, App.D. 566, 313 U.S. A.L.R. 612, 70 L.Ed. asked after v. States, States, States, cannot 84 60 1318. Alabama, 544, con- U. L. L. S. United States Ed. A. access 529, Alabama, Pierre, Thornton, Cal. carrying State v. 61 85 S. Tex.Or.R. 547, L.Ed. 146; S.Ct. Even Litkofsky 1663; 197 S.W. 802, 55, to the 169 F. 550, it, 956, Brown, 1513; Oliver v. 803, 313 U.S. 245 Mo. was denied the as the cf. 87, 555, the burden were 85 L.Ed. P. grand 804. 185; People 225 S.W. Ward United Zwillman, 1042, court below denied 62 S.Ct. Harrold v. 436, Boyce, Del., State, 547, Williams v. 17 Ann.Cas. 1511; 1043; 150 S.W. 61 States, Texas, opportunity O’Bryan, 165 minutes. 1139, 2 S.Ct. Oklahoma, Vernon Tex.Cr.R. State 405, 80 on St. 316 State, 1048; 1092, Cir., 108 Cf. U. L. v.

847 just protection Iwhy dis- problem persons indicate whom the and to privilege. government might punish for agree of the seek to certain critics with crimes. privi- critics, (a) regarding that Those is still in our Constitution knowing that it is lege pernicious and as not, whether we and whether or like it or con- procure repeal of difficult to not we call it a foolish sentimental safe it, urge provision confers stitutional guard happen I criminals. think by emasculating the courts to eliminate it there is more to be said for reasonable not interpretations. Any judges who do ness its than harshest comply suggestion readily with that admit, place critics will to come but this is “reactionary.” call on rational to its defense easy privilege. grounds.29 For, I reasonable or unreason It to caricature is able, who, part we, when is recall the case of a Constitution why an judges, refused to took oath Of judge asked to enforce. course, my replied, is in question, “Because need for differentiation swer a specific I have lawyer judicial I’m a me crook.” attitudes towards the tells Constitution; general the the quarrel who assert with those clauses wisely respect latter, freedom from guaranty of with recognized, beginning it has constitutional been is, Marshall, seizures at searches with unreasonable John important pliancy interpretation more for the in today, is least preservation far of democracy, more and far Constitution is not to act as a Supreme Court, than the justifiable grounds, strait-jacket; ac on rational and the privilege against cordingly, interpret self-incrim has unwilling, been in constitutional not, think, clauses, business ing such ination. But bound its own cases,28 con precedents deciding same extent as in other judges, of sider pro desirability legal of constitutional provinces.30 That differentiation For, urge gut the judges pertinent Those who here. as the Federalist visions. privilege ing constructions, say shows, by narrowing majority the Constitutional opposed a foolish sentimental based on the inclusion in the that it is Convention Constitution of criminals, forget provisions specific along protect desire to gave part Bill Rights, whose efforts lines they century Puritans of a 17th Constitution, protect general, themselves wanted the rise wanted to to it them, requirements. vague Judge in its enforcement be Hough31 What the effective testimony, vague of then valid has called “convenient their own through laws, process,” phrases Americans who “due “in that the ness” of like criminal commerce,” “impairment our constitution or privilege' into terstate wrote the contracts,” stupid sagacious persons obligation regarded has men but been were wisely permitting “adaptive” interpre who, knowledge of what changing intended afford meet needs.32 unquestionably tations to national doing, 30 See, 28 Judges, course, g., or off remarks on e. of Chief Jus urge Schmidlapp, properly bench, Stone Graves v. criticize tice provi constitutional U.S. L.Ed. the amendment “specific” changes as to or common comments consti in statutes sions provisions many of our tutional States v. the work of law rules. See judges preparing Co., L. I. Carolene Products 304 U.S. the A. ablest of Evi note 58 S.Ct. the A. L. Code L.Ed. I. Restatements or J., Hough, in United States Cf. Today, dence. Hough, Due Process of Law Refining Asphalt Lake Co. v. Trinidad (1919). 32 Harv.L.Rev. D.C., Co., and L. F. Petroleum Action, Corwin, Judicial Review J., Hand, & v. H. in Parke-Davis Co. (1926); of Pa.L.Rev. 639 U. McCul 115; Co., C.C., F. Mulford K. Maryland, 316, 405, loch Wheat. Ministry Justice, Cardozo, Harv. A L.Ed. Pensacola Tel. Co. v. West (1921). L. Rev. Co., 1, 24 ern 96 U.S. Union Haskell, ed.) (3d Wigmore, Bank v. Evidence Noble State Cf. 104, 115, 55 L.Ed. L.R.A.,N.S., Ann.Cas.1912A, interferes said that It phrase, importantly crim- the recurrent use of the with enforcement Note judicial gradual process not, however, inclusion “the inal laws. exclusion”; City England, privi- Davidson shown where perhaps Orleans, lege here, broader than “law New Washington n enforcement” Daw- less State W. C. efficient. elasticity v. often have done)35 of the these Association of Building & Loan 398, Home 231, elastic, 443, phrases purposely constitutional Blaisdell, 54 S.Ct. left 290 U.S. tamper 1481, they phras 242, 413, Chief with those 88 A.L.R. should L.Ed. designed the said, Strangely es not speaking of to be Hughes flexible. Justice clause, enough, opposed statement who are to “If those most contracts judicial of changes at time those meant constructions of what the Constitution intended to today, designedly it is adoption elastic clauses of the Constitution its it means vigorous the Constitu- are often de say clauses of the most their great interpreta- that the eviscerate the confined to framers, mands courts should tion conditions specific self-incrim relatively inelastic tion which the time, have of their ination clause. and outlook its carries them, placed upon the statement prac (b) I Since think that the fullest however, Where, a con- own refutation.”33 im ticable disclosure to the courts of all un- one here provision, like the stitutional portant of bearing evidence on fairly consideration, clear and had der of cases essential to the administration adapted, and it was precise meaning when justice, I agree heartily with critics vague, then to intended privileges all accorded witnesses that each “historical has.given it an Supreme Court privileges periodic examina of those needs interpretation.”34 policy determine whether tion to possible argue the literal to in prompted outweigh its it is sufficient an Fifth Amendment shows language of the with access such evidence. terference privilege operative make the intention to Indeed, seriously far more than do that, take only asked in criminal many idea if critics the those witness; proceeding against justice justice, are it is courts of to do Supreme long ago decided Court the imperative than that the come closer courts incorporate intention of those words was to facts, today the actual exer do privilege, and, entire law common con- fact-finding. more care in cise art sequently, open it is not this privileges The several and the out-of-date say that has a Amendment narrower exclusionary (including rules meaning. Taking pro- the constitutional notably hearsay) the rule doubt must), then (as having vision legisla our less need reconsideration designed privi- to include the common law im are the least tures. But lege, judges dangerously I think that are pediments adequate fact-finding which, — unwisely beyond their going legitimate perhaps is the most difficult while it if, personal functions because of their important part judicial process, most provision originally beliefs that study. long As as we least receives outmoded, they is now take unfortunate or jury’s general ver employ the continue dict, meaning its on themselves frustrate verdicts, special using instead of purpose by interpretations. crippling about pretty much waste of time bother juries evidence which niceties of the obligation not to cut It is our sworn into permitted hear. permitted and not which will al- this decisions reason to believe there is much prosecutors For to circumvent low gen juries frequently in inscrutable plain purpose bring those to defeat the relation lawfully eral little inserted it in the verdicts who Constitution. to do nothing little or the evidence and themselves into Judges should not convert findings made They may purported conventions. with any constitutional fact true, limits, And, appropriate then avail them.36 properly, within (as Supreme hearsay rule and all Court abolition themselves Justices Ed. Utah, States son 302, 423, Cir., Coleman, Cf. Cf. & 130 F.2d 5 S.Ct. Co., L.Ed. Douglas Corwin, Wong Ex U.S. 770. 652, parte Wilson, Kim U.S. loc. 657, cf. Louisville Gas Co. City 18 S.Ct. Ark, cit.; 219, L.Ed. 32, 236, 44 Thompson 41, Jeannette, 620, U.S. 42 L. S.Ct. Yale vices Mind of land, Verdicts, Moore-McCormack Change, 1937), State Think of what would be the For Cf. Bar L.J. an address before the Blair, Bench, 131 F.2d 907. See Association general excellent Juror General (1919). Lines, see verdict, (Student’s (1942). exposition Bar Cf. Foster Osborn, Special, and Social New York Edition, Sunder outcry Dec. sporting essentially a a im lawsuit is greatest coupled with privileges, event,39 which, to an a when limited will thesis discovery, pre-trial provements often preservation appro espousal of evi of more hear juries mean that merely priately proced supplemented contentious disregards.37 Court they will dence which which, ure,40 intelligent, but, when car is un is human fact-finding, it a since room is,41 excess, flies as it often it ried perfect, but be dertaking, can never shock common sense and would face of as far as improved be and should can lawyers judges if custom had all of us single obsta greatest possible.38 And injustices it all made us of not callous improvement the devotion to that cle frequently produces the thesis too profession legal of our much Evidence if administrative where the tricks whether way testants looked, of bringing pects trade, will make the worse gal,” 844ff; general beard two B. G. judicial question possible, unfortunate today posed of trained lawyers.” quote Macaulay, “a tribunal will decide a Macaulay lo may, pects.” and note reason; cific 1845; Seagle, 125 F.2d of a “the demoralization plate (enforced discovery F.2d at dispassionately described. esses” (1936) 1387, 1389. Thayer, 39 Wigmore, 37 Morgan See Since true, trials is doubtless Cf. end Cf. judge findings case; in which c. however, a trial Goldstein, the case developed Osborn, Corp., but “a In re although page United States verdicts a court’s Essay superior of a trial to the attention on adversary or it are 928, 942, cit., of the truth goes on to (1898) able men will be Book A cf. Aero the two consequences of fact. is not 97, 190, 191. not The Barnett, In re loc. Preliminary on game invariably under there is Trial Review, 49 Harv.B.Rev. most to frustrate brilliantly instead of either “factual” or eloquence fact-finders, 535 remarked agencies, more judgment History (1828). 943. Quest For Law cit., 12, Evidence compelled at of the bar.” See “a argue, sides say: “Sometimes, Spark Plug, Barnett, otherwise trials 130 F.2d contentious fairly appear least certain that Techniques (1936) proceeding litigants two than two governmental which the con reason Forness, 2 of the great Cir., 124 true jury rational usually described the court Treatise different making when it has through justice, unfairly (3d brought supra, 86. the better decree at 'fact be over dexterity * * * value in to doubt lawyers’ but lead contem Inc., on method aspects for (1941), ed.) There proc com- Cir., spe- “le Osborn, act as as its on ” § fession so because reforms in plement would finance make As law”—should could be so staffed tent, tions like that parties making cover Trials trial, often served that sponsibility either necessary), cratic alike parties or or dence ernment created to due to is not hnoion to expensive investigation. And, often, 3 Lectures on applying stoohholders’ suits quate uncovering sheriffs, tice is not dure. fice: thousands although highly desirable, discovered depends Wigmore Accordingly, there should be considered Pre-trial diligence suggestion that all See Cf. L. supposed the methods of the are not The (and side could to Reach the Heart of principle following investigations bring to witnesses who, policemen Osborn, is not the contentious mode variety rules of law to on juvenile on the efficacy sufficient do discovery lack of funds the court—an done, only through the members means that for (loc. cit., of trial Hand, The Deficiencies of a crucial elsewhere dollars have in the Legal Topics (1926) 89, to be devoted to the demo- as away decided done, discovered. like) which it seeing of obstacles: loc. ability ¿nd light documentary feared loss procedures whom either stand. impossible and even the where, often, lawyer causes, may courts. some administer “equality adversary with but would employ, under the investigation past, cit., before trial trial courts should differently suggested, inertia, piece accounting the facts of cases crucial available evidence, considerable 1845) agency device, Consider, Such for one of extensive domestic it officials cases does have Lack of If one of have before the lawyer new justice something legal some evidence, lawyers. has ob army, if requires actually opposed Matter, income. at of him to or a more lawyer would device proce- alone. injus- rules, rela- done best, skill sup- gov- ade- pro too, suf- evi- dis- ex- re- am, then, I in this dissent moved by any protect crim- sentimental desire prevent full inals desire judicial scrutiny practicable as is of the the cases. am moved fear of consequences government in to democratic general, particular, and to the courts judicial unrepealed disregard specific Courts, when sections of the Constitution. they manner, in- conduct popular rejection in that themselves vite of our established legal institutions unlawful means. ILLINOIS,

PEOPLE OF STATE OF Use al., TRUST CO. OF CHICAGO et MARYLAND CASUALTY CO. et al. CASUALTY CO. et

MARYLAND al. v. BOWEN et al.

Nos. Appeals, Seventh

Circuit Court Circuit.

Dec. satisfaetory explanation; many Hoffman businessmen forsake court trials Palmer, Cir., turn out-of-court and to arbitrations lawyers however, If, factor economic is im- often excluded lawyers portant, would do well resultant loss of income. to note —with trials has that the unfairness of induced

Case Details

Case Name: United States v. St. Pierre

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 15, 1942

Citation: 132 F.2d 837

Docket Number: 107

Court Abbreviation: 2d Cir.