Brown v. United States (356 U.S. 148)/Opinion of the Court

by Felix Frankfurter

United States Supreme Court

356 U.S. 148

Brown  v.  United States (356 U.S. 148)

 Argued: Oct. 22, 1957. --- Decided: March 31, 1958

This is a proceeding of summary disposition, under Rule 42(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., ^[1] of a finding of criminal contempt committed in the actual presence of the court, the power to punish which is given by 18 U.S.C. § 401, 18 U.S.C.A. § 401. ^[2] The proceeding grew out of a suit for denaturalization brought against petitioner pursuant to § 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 8 U.S.C. (Supp. IV) § 1451(a), 8 U.S.C.A. § 1451(a). The complaint in the denaturalization suit charged that petitioner had fraudulently procured citizenship in 1946 by falsely swearing that she was attached to the principles of the Constitution, and that she was not and had not been for ten years preceding opposed to organized government or a member of or affiliated with the Communist Party or any organization teaching opposition to organized government, whereas in fact petitioner had been, from 1933 to 1937, a member of the Communist Party and the Young Communist League, both organizations advocating the overthrow of the Government of the United States by force and violence.

At the trial in the denaturalization proceeding, petitioner was called as an adverse witness by the Government under Rule 43(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Petitioner admitted that she had once been a member of the Young Communist League, but denied that she had belonged to the Communist Party in the period before 1946. She refused to answer questions about activities and associations that were unlimited in time or directed to the period after 1946 on the ground that her answers might tend to incriminate her, and the District Court sustained the claim of privilege. At the close of the Government's examination, petitioner's counsel stated that, 'I won't cross-examine the witness at this point. I will put her on on direct.' ^[3]

Thereafter petitioner took the stand as a witness in her own behalf. She comprehensively reaffirmed the truth of the statements made at the time of her naturalization, and, although she admitted membership in the Young Communist League from about 1930, claimed that she had resigned in 1935 and had not engaged in any Communist activities from 1935 until her naturalization in 1946. Not content to rest there, petitioner went on to testify that she had never taught or advocated the overthrow of the existing government or belonged to any organization that did so advocate, that she believed in fighting for this country and would take up arms in its defense in event of hostilities with Soviet Russia, and that she was attached to the principles of the Constitution and the good order and happiness of the United States. ^[4] This testimony was directed to petitioner's present disposition towards the United States, and was not limited to the period before 1946.

On cross-examination the Government immediately put to petitioner the question, 'Are you now or have you ever been a member of the Communist Party of the United States?' It also asked numerous other questions relating to Communist activities since 1946 that petitioner had successfully refused to answer when first examined. Petitioner again refused to answer, claiming the privilege against self-incrimination. The District Court ruled that by taking the stand in her own defense petitioner had abandoned the privilege, and directed her to answer. However, petitioner persisted in her refusal to answer any questions directed towards establishing that she had been a Communist since 1946. For this she was cast in contempt of court and sentenced to imprisonment for six months. The judgment of conviction was affirmed by the Court of Appeals. 234 F.2d 140. Deeming the record to raise important questions regarding the scope of the privilege against self-incrimination and the power of a federal court to make summary disposition of a charge of criminal contempt, we brought the case here. 352 U.S. 908, 77 S.Ct. 152, 1 L.Ed.2d 116. Argument was had in the 1956 Term and the case set down for reargument in the present Term. 354 U.S. 907, 77 S.Ct. 1292.

The conduct for which petitioner was found guilty of contempt was her sustained disobedience of the court's direction to answer pertinent questions on cross-examination after her claim of the privilege against self-incrimination had been overruled. On the first argument in this Court, petitioner stood on the validity of her claim of privilege as the essential ground for reversal here of the judgment of the Court of Appeals. It was taken for granted by petitioner no less than by the Government that for a party insistently to block relevant inquiry on cross-examination subjects him to punishment for contempt in the exercise of the power vested in the federal courts throughout our history. Act of Sept. 24, 1789, s 17, 1 Stat. 83; Act of Mar. 2, 1831, 4 Stat. 487-488; R.S. § 725; Judicial Code, 1911, § 268, 36 Stat. 1163; 18 U.S.C. § 401, 18 U.S.C.A. § 401.

On reargument, both sides, responsive to a suggestion from the bench, discussed the relevance of Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, to the present situation. That case, followed in In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30, held that for perjury alone a witness may not be summarily punished for contempt. The essence of the holding in those cases was that perjury is a specifically defined offense, subject to prosecution under all the safeguards of the Fifth and Sixth Amendments, and that the truth or falsity of a witness' testimony ought not be left to a judge's unaided determination in the midst of trial. Perjury is one thing; testimonial recalcitrance another. He who offers himself as a witness is not freed from the duty to testify. The court (except insofar as it is constitutionally limited), not a voluntary witness, defines the testimonial duty. See Judge Learned Hand in United States v. Appel, D.C., 211 F. 495.

Such has been the unquestioned law in the federal judicial system time out of mind. It has been acted upon in the lower courts and this Court. Whatever differences the potentially drastic power of courts to punish for contempt may have evoked, a doubt has never been uttered that stubborn disobedience of the duty to answer relevant inquiries in a judicial proceeding brings into force the power of the federal courts to punish for contempt. Trial courts no doubt must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice. It is no less important for this Court to use self-restraint in the exercise of its ultimate power to find that a trial court has gone beyond the area in which it can properly punish for contempt. We are not justified in sliding from mere disagreement with the way in which a trial court has dealt with a particular matter, such as petitioner's conduct in the present case, into a condemnation of the court's action as an abuse of discretion.

We thus reach the constitutional issue.

Petitioner contends that by taking the stand and testifying in her own behalf she did not forego the right to invoke on cross-examination the privilege against self-incrimination regarding matters made relevant by her direct examination. She relies on decisions holding that witnesses in civil proceedings and before congressional committees do not waive the privilege by denials and partial disclosures, but only by testimony that itself incriminates. More particularly, petitioner's reliance is on Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138; 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023; 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158. In that litigation a witness called before special commissioners in bankruptcy proceedings filed schedules of his assets and liabilities and made certain disclosures in respect to his financial condition, but refused to answer numerous questions on the ground that to do so might incriminate him. This Court held that the witness' refusal did not constitute contempt; that since the evidence furnished 'did not amount to an admission of guilt or furnish clear proof of crime * * *,' the privilege had not been abandoned and the witness was entitled to 'stop short' when further testimony 'might tend to incriminate him.' 254 U.S. at page 72, 41 S.Ct. at page 26; 262 U.S. at page 358, 43 S.Ct. at page 563. The testimony of petitioner in the present case admittedly did not amount to 'an admission of guilt or furnish clear proof of crime,' but was, on the contrary, a denial of any activities that might provide a basis for prosecution.

Our problem is illumined by the situation of a defendant in a criminal case. If he takes the stand and testifies in his own defense his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. '(H)e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.' Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S.Ct. 944, 949, 44 L.Ed. 1078; and see Reagan v. United States, 157 U.S. 301, 304-305, 15 S.Ct. 610, 611, 39 L.Ed. 709. The reasoning of these cases applies to a witness in any proceeding who voluntarily takes the stand and offers testimony in his own behalf. It is reasoning that controls the result in the case before us.

A witness who is compelled to testify, as in the Arndstein type of case, has no occasion to invoke the privilege against self-incrimination until testimony sought to be elicited will in fact tend to incriminate. It would indeed be irrelevant for him to do so. If he is to have the benefit of the privilege at all, and not be confronted with the argument that he has waived a right even before he could have invoked it, he must be able to raise a bar at the point in his testimony when his immunity becomes operative. A witness thus permitted to withdraw from the cross-fire of interrogation before the reliability of his testimony has been fully tested may on occasion have succeeded in putting before the trier of fact a one-sided account of the matters in dispute. This is an argumentative curtailment of the normal right of cross-examination out of regard for the fair claims of the constitutional protection against compulsory self-incrimination.

On the other hand, when a witness voluntarily testifies, the privilege against self-incrimination is amply respected without need of accepting testimony freed from the antiseptic test of the adversary process. The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry. Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell. '(T)here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility.' Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503. The interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination. ^[5] Petitioner, as a party to the suit, was a voluntary witness. She could not take the stand to testify in her own behalf and also claim the right to be free from cross-examination on matters raised by her own testimony on direct examination.

Petitioner claims that the District Court found that she had waived the privilege merely by taking the stand, whereas the Court of Appeals affirmed her conviction on the ground that she had taken the stand and testified as she did. Petitioner argues from this distinction that her conviction has been affirmed on a charge not made in the District Court. She also suggests that the reason given by the District Court for finding a waiver misled her as to the actual legal question involved, and that but for the assertions of the court she might have withdrawn her opposition to the cross-examination and answered the questions put by the Government.

The record does not fairly support the statement that the District Court found a waiver simply in the act of taking the stand. After petitioner had testified on direct examination, the court ruled that 'the defendant having taken the stand in her own defense, has waived the right to invoke the Fifth Amendment * * *.' In view of the circumstances surrounding this ruling and the testimony that preceded it, it is reasonably clear that the court meant to convey by 'having taken the stand in her own defense' what she said on the stand, not merely that she physically took the stand. As the District Court expressly stated in its opinion finding petitioner in contempt, it had cautioned her that 'she had waived the right to claim any privileges under the Fifth Amendment, by reason of having testified as a witness in her own behalf.' The reason for abandonment of the privilege, as thus expressed by the court, is wholly consistent with the reason given by the Court of Appeals in affirming the conviction, and with our ground for upholding the judgment of the Court of Appeals. Nice questions in interpreting the record to ascertain whether a trial court has discharged its duty of appropriately framing the legal issues in a litigation, or at least not misframing them to the detrimental reliance of one of the parties, are not here presented. Taken in context, the ruling of the District Court conveyed a correct statement of the law, and adequately informed petitioner that by her direct testimony she had opened herself to cross-examination on the matters relevantly raised by that testimony. The judgment is affirmed.

Affirmed.

Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.

Notes

1. 'A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The orer of contempt shall recite the facts and shall be signed by the judge and entered of record.'
2. 'A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as-
3. Counsel for petitioner in this Court did not represent her in the trial court.
4. 'Q. Are you willing to take up arms in defense of this country, in the event of any hostility between the United States and Russia? A. Yes.
5. Striking the witness' testimony, or relying on the trier of fact to take into account the obvious unfairness of allowing the witness to escape cross-examination, must often in practice be poor substitutes for a positive showing under searching cross-examination that the testimony is in fact false.