Rogers v. United States
Rogers v. United States
Concurring in Part
Some people are hostile to the Fifth Amendment’s provision unequivocally commanding that no United States
The doctrine of waiver seems to be a more palatable but equally effective device for whittling away the protection afforded by the privilege, although I think today’s application of that doctrine cannot be supported by our past decisions. Of course, it has never been doubted that
Apparently, the Court’s holding is that at some uncertain point in petitioner’s testimony, regardless of her intention, admission of associations with the Communist Party automatically effected a “waiver” of her constitutional protection as to all related questions.
The records in this and in the companion cases
I would reverse the judgment of conviction.
APPENDIX TO OPINION OF MR. JUSTICE BLACK.
The following is the full transcript of proceedings at the time the judgment now under review was entered:
“The Court: . . . What is the next case? Can we dispose of these ladies now?
“Mr. Goldschein [Special United States Attorney]: Mrs. Jane Rogers.
“The Court: Is she here ?
“Mr. Goldschein: She is here, yes, sir. Now, may it please Your Honor—
“The Court: Step over here, madam. What is the status of her case?
“Mr. Goldschein: Mrs. Rogers refuses to answer the questions propounded to her in the grand jury room. She was brought back on yesterday, but says that she will answer one question but will not answer any others, and was advised that it would be necessary for her to answer all questions propounded except those which would incriminate her for the violation of a federal offense, and she says she won’t answer any.
“The Court: Is that your position, madam?
“Mr. Menin [counsel for petitioner]: I think there has been a misunderstanding.
*382 “The Court: Just a minute. Will you please be seated, Mr. Menin? Please be seated.
“Mr. Menin: Well, I represent this lady.
“The Court: Just a moment. Please be seated.
“Mr. Menin: Very well.
“The Court: I’ll hear you in due course[.] Madam, do you still persist in not answering these questions?
“Mrs. Rogers: Well, on the basis of Mr. Menin’s statements this morning—
“The Court: Will you please answer the question yes or no?
“Mrs. Rogers: Well, I think that’s rather undemocratic [.] I’m a very honest person. Would you mind letting me consider—
“The Court: Make any statement you wish.
“Mrs. Rogers: Well, as I said before, I’m a very honest person and I’m not acquainted with the tricks of legal procedure, but I understand from the reading of these cases this morning that I am — and I do have a right to refuse to answer these questions, on the basis that they would tend to incriminate me, and you read it yourself, that I have a right to decide that.
“The Court: You have not the right to say.
“Mrs. Rogers: According to what you read, I do. I stand on that.
“The Court: All right. If you will make no changes, it is the judgment and sentence of the court you be confined to the custody of the Attorney General for four months. Call the next case.” Transcript of Record, pp. 76-78 (September 23, 1948).
"This provision [against-self-incrimination] must have a broad construction in favor of the right which it was intended to secure.” Counselman v. Hitchcock, 142 U. S. 547, 562.
While it has been held that failure specifically to invoke the privilege prior to final judgment constituted a waiver, United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113; United States v. Murdock, 284 U. S. 141, 148, such cases'are not controlling here. Before final judgment was entered against this petitioner, she asserted the privilege not to incriminate herself under federal law, and was sentenced for standing on this ground. See Appendix following this opinion, p. 381.
The Court’s reliance on Brown v. Walker, 161 U. S. 591, as indicating that the privilege can be waived unintentionally is misplaced. For in the Brown case, it was said that “if the witness himself elects to waive his privilege, ... he is not permitted to stop, but must go on and make a full disclosure.” (Emphasis supplied.) Id., at 597.
The practical difficulties inherent in the rule announced by the Court are made apparent by a reading of the opinions in United States v. St. Pierre, 132 F. 2d 837.
See note 11 and accompanying text, infra.
Today’s opinion seeks to derive a looser test from certain negative language in the subsequent case of McCarthy v. Arndstein, 262 U. S. 355, 359, where it was said that if “the previous disclosure by an ordinary witness is not an actual admission of guilt or incriminating facts, he is not deprived of the privilege of stopping short . . . .” In that very case, however, the Court quoted with approval the minimum rule it had previously announced. Id., at 358. Moreover, in stating the reason why Arndstein had not waived his privilege, the Court said: “And since we find that none of the answers which had been voluntarily given by Arndstein, either by way of denials or partial disclosures, amounted to an admission or showing of guilt, we are of opinion that he was entitled to decline to answer further questions when so to do might tend to incriminate him.” Id., at 359-360.
It is also suggested that the Michigan case of Foster v. People, 18 Mich. 266, was adopted as the federal rule by this Court in McCarthy v. Arndstein, supra, at 359. Although the Foster case was there cited, no acceptance was intended of the language in the Michigan
I do not understand the Court’s holding to rely on the statement in the opinion that “petitioner had no privilege with respect to the books of the Party . . . .” This statement of course is not relevant' in the present case where there is no issue of compelling petitioner to turn over unprivileged documents in her possession. But if the Court does intend to suggest that a witness is not privileged in refusing to answer incriminating questions merely because those questions relate to unprivileged documents, then I must point out that the decision in this case is entirely inconsistent with our-recent unanimous decision in Patricia Blau v. United States, 340 U. S. 159, note 1.
Patricia Blau v. United States, supra; Irving Blau v. United States, 340 U. S. 332.
Although the Court of Appeals upheld the convictions of most of the witnesses called before the grand jury, it made the following comment concerning the conduct of the Special United States Attorney: “[His] stock statement to the witness that she was not under investigation and that the grand jury was not proceeding against her, was not warranted. It was not for him to say what the scope of the grand jury’s investigation was; neither was his statement a substitute for her constitutional protection.” Rogers v. United States, 179 F. 2d 559, 563. Other “irregularities” in the proceedings below were also pointed out. Id., at 561. Conduct of the same prosecutor during a similar grand jury investigation in Los Angeles was criticized by judges of the Ninth Circuit in Alexander v. United States, 181 F. 2d 480. There it was said that the government attorney “pursued the same tactics tending to put the witness off his guard . . . .” Id., at 482.
The transcript of this portion of the proceedings below is set out in the Appendix, post, p. 381.
The district judge’s sole reference to “waiver” was not made in the case of petitioner. In addressing one of the other witnesses, however, the judge said, “Of course, anything you testify to, unless you signed a waiver, can’t be used against you in any trial hereafter. That’s the law, isn’t it?” (Emphasis supplied.) The conviction of this witness, Nancy Wertheimer, was the only one reversed by the Court of Appeals. Rogers v. United States, 179 F. 2d 559.
For a description, of the abuses which led to the incorporation of the privilege against self-incrimination in the Bill of Rights, see Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L. Rev. 763.
Opinion of the Court
delivered the opinion of the Court.
This case arises out of an investigation by the regularly convened grand jury of the United States District Court for the District of Colorado. The books and records of the Communist Party of Denver were sought as necessary to that inquiry and were the subject of questioning by the grand jury. In September, 1948, petitioner, in response to a subpoena, appeared before the grand jury. She testified that she held the position of Treasurer of the Communist Party of Denver until January, 1948, and that, by virtue of her office, she had been in possession of membership lists and dues records of the Party. Petitioner denied having possession of the records and testified that she had turned them over to another. But she refused to identify the person to whom she had given the Party’s books, stating to the court as her only reason: “I don’t feel that I should subject a person or persons to the same thing that I’m going through.”
The next day, counsel for petitioner informed the court that he had read the transcript of the prior day’s proceedings and that, upon his advice, petitioner would answer the questions to purge herself of contempt.
If petitioner desired the protection of the privilege against self-incrimination, she was required to claim it.
The privilege against self-incrimination, even if claimed at the time the question as to the name of the person to whom petitioner turned over the Party records was asked, would not justify her refusal to answer. As a preliminary matter, we note that petitioner had no privilege with respect to the books of the Party, whether it
In Patricia Blau v. United States, 340 U. S. 159 (1950), we held that questions as to connections with the Communist Party are subject to the privilege against self-incrimination as calling for disclosure of facts tending to criminate under the Smith Act.
“Thus, if the witness himself elects to waive his privilege, as he may doubtless do, since the privilege is for his protection and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure."13
Following this rule, federal courts have uniformly held that, where criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details.
“[WJhere a witness has voluntarily answered as to materially criminating facts, it is held with uniformity*374 that he cannot then stop short and refuse further explanation, but must disclose fully what he has attempted to relate.” 18 Mich, at 276.16
Requiring full disclosure of details after a witness freely testifies as to a criminating fact does not rest upon a further “waiver” of the privilege against self-incrimination. Admittedly, petitioner had already “waived” her privilege of silence when she freely answered criminating questions relating to her connection with the Communist Party. But when petitioner was asked to furnish the name of the person to whom she turned over Party records, the court was required to determine, as it must whenever the privilege 'is claimed, whether the question presented a reasonable danger of further crimination in light of all the circumstances, including any previous disclosures. As to each question to which a claim of privilege is directed, the court must determine whether the answer to that particular question would subject the witness to a “real danger” of further crimination.
Petitioner’s contention in the Court of Appeals and in this Court has been that, conceding her prior voluntary crimination as to one element of proof of a Smith Act violation, disclosure of the name of the recipient of the Party records would tend to incriminate as to the different crime of conspiracy to violate the Smith Act. Our opinion in Patricia Blau v. United States, supra, at 161, explicitly rejects petitioner’s argument for reversal here in its holding that questions relating to activities in the Communist Party are criminating both as to “violation of (or conspiracy to violate) the Smith Act.” Of course, at least two persons are required to constitute a conspiracy, but the identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown.
Affirmed.
Transcript, p. 39 (September 21,1948):
“The Court: Now, what is the question ?
“Mr. Goldschein: Who has the books and records of the Communist*369 Party of Denver now. Who did Mrs. Rogers give those books up to as she says she gave them up in January of this year.
“The Court: Do you care to answer that question, madam?
“Mrs. Rogers: I do not.
“TheCourt: What?
“Mrs. Rogers: I do not, and that’s what I told them.
“The Court: Why won’t you answer ?
“Mrs. Rogers: I don’t feel that I should subject a person or persons to the same thing that I’m going through.
“The Court: It is the order or finding of the Court that you should answer those questions. Now, will you do that ?
“Mrs. Rogers: No.”
Transcript, p. 40 (September 21,1948):
“The Court: You will be detained until tomorrow morning until ten o’clock. In the meantime, you may consult counsel and have a hearing tomorrow morning at ten o’clock on your reasons for refusal to answer questions. '
“Mrs. Rogers: I can consult counsel between now and then?
“The Court: Yes, but you will be in the custody of the marshal all the time. Get your counsel and bring him over here if you want to, but you will have to be in the custody of the marshal and spend the night in jail, I’m afraid.”
Transcript, pp. 43, 49 (September 22,1948):
“Mr. Menin [After entering his appearance on behalf of petitioner] : In regard to the witness Rogers, I’ve read the transcript of what has transpired in court here yesterday; and I believe that upon my advice she will answer questions which were propounded to her.
“Mr. Menin: As to the witness Jane Rogers, I think she will purge herself of her contempt by answering the questions.
“The Court: In the case of the witness Rogers, then, the order of the Court is that she return to the Grand Jury room and if she purges herself of contempt, then upon bringing the matter back to the Court, she will be discharged. In the meantime, she will remain in custody.”
“No person. . . . shall be compelled in any criminal case to be a witness against himself . . . .” U. S. Const., Amend. V. The proceedings leading to the claim of privilege by petitioner appear at Transcript, pp. 77-78 (September 23,1948):
“The Court: . . . Madam, do you still persist in not answering these questions?
"Mrs. Rogers: Well, on the basis of Mr. Menin’s statements this morning—
“The Court: Will you please answer the question yes or no?
“Mrs. Rogers: Well, I think that’s rather undemocratic[.] I’m a very honest person. Would you mind letting me consider—
“The Court: Make any statement you wish.
“Mrs. Rogers: Well, as I said before, I’m a very honest person and I’m not acquainted with the tricks of legal procedure, but I understand from the reading of these cases this morning that I am — and I do have a right to refuse to answer these questions, on the basis that they would tend to incriminate me, and you read it yourself, that I have a right to decide that.
“The Court: You have not the right to say.
“Mrs. Rogers: According to what you read, I do. I stand on that.
“The Court: All right. If you will make no changes, it is the judgment and sentence of the court you be confined to the custody of the Attorney General for four months. Call the next case.”
Citing Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927). See Smith v. United States, 337 U. S. 137, 147 (1949) ; Corwin, The Supreme Court’s Construction of the Self-Incrimination Clause, 29 Mich. L. Rev. 1, 198-199 (1930).
United States v. Murdock, 284 U. S. 141, 148 (1931).
Hale v. Henkel, 201 U. S. 43, 69 (1906). McAlister v. Henkel, 201 U.S. 90, 91 (1906).
Brown v. Walker, 161 U. S. 591, 609 (1896); Hale v. Henkel, 201 U. S. 43, 69-70 (1906).
Wilson v. United States, 221 U. S. 361 (1911); Wheeler v. United States, 226 U. S. 478 (1913); Grant v. United States, 227 U. S. 74 (1913); Essgee Co. v. United States, 262 U. S. 151 (1923).
Brown v. United States, 276 U. S. 134 (1928); United States v. White, 322 U. S. 694 (1944). Cf. United States v. Fleischman, 339 U. S. 349, 358 (1950).
See also the cases cited in notes 7 and 8, supra. The privilege does not attach to the books of an organization, whether or not the books in question are “required records” of the type considered in Shapiro v. United States, 335 U. S. 1 (1948).
Membership in the Communist Party was not, of itself, a crime at the time the questions in this case were asked. And Congress has since expressly provided, in the Internal Security Act of 1950, Act of Sept. 23, 1950, 64 Stat. 987, 992, §4 (f), that “neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.” We, of course, express no opinion as to the implications of this legislation upon the issues presented by these cases.
Quoted with approval in Powers v. United States, 223 U. S. 303, 314 (1912).
United States v. St. Pierre, 132 F. 2d 837 (C. A. 2d Cir., 1942); Buckeye Powder Co. v. Hazard Powder Co., 205 F. 827, 829 (D. C. Conn., 1913).
262 U. S. at 359 (emphasis supplied). The Arndstein appeals, like the present case, arose out of an involuntary examination. The Court reserved, as we do here, the problems arising out of a possible abuse of the privilege against self-incrimination in adversary proceedings. Compare state court decisions collected in 147 A. L. R. 255 (1943).
VIII Wigmore, Evidence (1940), §2276, quotes from Foster v. People, 18 Mich. 266 (1869), as authoritative and summarizes the law as follows:
“The case of the ordinary witness can hardly present any doubt. He may waive his privilege; this is conceded. He waives it by exercising his option of answering; this is conceded. Thus the only inquiry can be whether, by answering as to fact X, he waived it for fact Y. If the two are related facts, parts of a whole fact forming a single relevant topic, then his waiver as to a part is a waiver as to the remaining parts; because the privilege exists for the sake of the criminating fact as a whole.” (Emphasis in original.)
Heike v. United States, 227 U. S. 131, 144 (1913). Brown v. Walker, 161 U. S. 591, 600 (1896).
Mason v. United States, 244 U. S. 362, 366 (1917).
United States v. St. Pierre, 132 F. 2d 837 (C. A. 2d Cir., 1942), presented a closer question since the “detail” which St. Pierre was required to divulge would identify a person without whose testimony St. Pierre could not have been convicted of a crime. We, of course, do not here pass upon the precise factual question there decided by the Court of Appeals.
Browne v. United States, 145 F. 1, 13 (C. A. 2d Cir., 1905); Donegan v. United States, 287 F. 641, 648 (C. A. 2d Cir., 1922); Pomerantz v. United States, 51 F. 2d 911, 913 (C. A. 3d Cir., 1931);
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