Hutcheson v. United States/Dissent Douglas

by William O. Douglas

United States Supreme Court

369 U.S. 599

Hutcheson  v.  United States

 Argued: Nov. 6, 1961. --- Decided: May 14, 1962

Mr. Justice DOUGLAS, dissenting.

I agree with the Court that the questions asked petitioner by the Committee were within its competence and were pertinent to the legislative inquiry. I do not think, however, that under the circumstances disclosed, the federal courts should lend a hand in fining him or in sending him off to prison.

Four months before these hearings, petitioner had been indicted in an Indiana court for felonies that involved directly or indirectly the matters concerning which the Committee questioned him. If he had refused to answer because of the Self-Incrimination Clause of the Fifth Amendment, his plea would have been admissible in the Indiana prosecution. State v. Schopmeyer, 207 Ind. 538, 542-543, 194 N.E. 144, 146. And by our decisions (see Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903) such a use would not be barred. So, under advice of counsel, petitioner did not refuse to answer on the ground of self-incrimination. Rather, he refused to answer on the ground that the questions might 'aid the prosecution in the case in which I am under indictment and thus be in denial of due process of law.'

The power to hold in contempt a witness who refuses to testify before a congressional committee has a dual aspect. First is the power of either the House or the Senate to summon him and order him held in custody until he agrees to testify. This power, though not used in recent years (Watkins v. United States, 354 U.S. 178, 206, 77 S.Ct. 1173, 1188), is of an ancient vintage. ^[1] But the power of either House to imprison the witness expires at the end of the session. As stated in Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242, '* * * although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its adjournment or periodical dissolution. It follows, that imprisonment must terminate with that adjournment.'

Second is the power of the courts to punish witnesses who are recalcitrant or defiant before a congressional committee or who, when summoned, default. 2 U.S.C. § 192, 2 U.S.C.A. § 192. This law, enacted in 1857, was passed so that 'a greater punishment' than the Congress thought it had the power to impose could be inflicted. Watkins v. United States, supra, 207, n. 45, 77 S.Ct. 1189.

We deal here with the second of these powers.

The federal courts do not sit as pushbutton mechanisms to fine or imprison those whom Congress refers to the United States Attorney for prosecution.

There is, for example, the case where no quorum of the congressional committee is present when the witness is charged with contempt. As said in Christoffel v. United States, 338 U.S. 84, 90, 69 S.Ct. 1447, 1450, 93 L.Ed. 1826, 'This not only seems to us contrary to the rules and practice of the Congress but denies petitioner a fundamental right. That right is that he be convicted of crime only on proof of all the elements of the crime charged against him. A tribunal that is not competent is no tribunal, and it is unthinkable that such a body can be the instrument of criminal conviction.' (Italics supplied.)

We held in Slagle v. Ohio, 366 U.S. 259, 265-266, 81 S.Ct. 1076, 6 L.Ed.2d 277, that though a legislative committee acts within bounds, yet the form of questions asked and rulings on objections to them may be so obtuse as to make it violative of due process for courts to punish a refusal to answer. ^[2] Cf. Quinn v. United States, 349 U.S. 155, 167-168, 75 S.Ct. 668.

A court will not lend its hand to inflict punishment on a person for contempt of a congressional committee where the proceeding was fundamentally unfair. ^[3] The proceeding was held unfair in Watkins v. United States, supra, because it was far from clear that the questions asked by the Committee were 'pertinent' to the question under inquiry. Id., 204-214, 77 S.Ct. 1187-1193. 'Fundamental fairness,' we said, demands that the witness be informed 'what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it.' Id., at 215, 77 S.Ct. at 1193. Vagueness in investigatory inquiries, like vagueness in criminal statutes, may not give a witness the notice that is necessary under our standards of due process. Id., at 208, 77 S.Ct. at 1189.

There is, I submit, a fundamental unfairness when we make it impossible for a witness to invoke a privilege which the Constitution grants him, and then send him off to jail when the privilege we withhold would have protected him. The guarantee against self-incrimination would have given petitioner full and complete immunity but for our decisions in cases like Adamson v. California, supra, and Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. Those decisions, however, makes his plea of self-incrimination admissible in the pending prosecution in the Indiana court. When we say that the Self-Incrimination Clause of the Fifth Amendment is not applicable to the States by reason of the Fourteenth Amendment, we turn a federal proceeding into a pretrial of the state prosecution, should the witness invoke his constitutional right. Since he dare not invoke it for fear of going to a state prison, he ends up in a federal prison. The result is to turn the guarantee against self-incrimination into a sham. A witness is whipsawed between state and federal agencies, having no way to escape the federal prison unless he confesses himself into a state prison.

We have at times said that this Hobson's choice granted a witness is a product of federalism. Feldman v. United States, 322 U.S. 487, 493, 64 S.Ct. 1082, 1084, 88 L.Ed. 1408, was, indeed, a case where the testimony of a man compelled to testify in a state proceeding sent him to a federal prison. But the result of this line of cases is a needless consequence of federalism, and one that makes the constitutional privilege against self-incrimination a 'phrase without reality.' Cohen v. Hurley, supra, at 132, 81 S.Ct. at 963 (dissenting opinion). Why due process for the State should be different in this respect from due process for the Federal Government is a mystery. We should overrule Adamson v. California, supra, and hold that no admission made by a witness in a federal proceeding nor any refusal to testify can be used against him in a state prosecution. Until we take that course, we cannot in good conscience send a man to a federal prison who goes there solely because we deprived him of a basic constitutional guarantee.

What we do today is consistent with our prior decisions in Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210. Yet the result is unfair. This case, like its forebears, shows why we should rid the books of Adamson v. California, supra, and hold that the privilege against self-incrimination contained in the Fifth Amendment is applicable to the States and to the Federal Government alike.

There has never, in my view, been a satisfactory answer to the position of the first Justice Harlan that due process in the Fourteenth Amendment does not mean something different from due process in the Fifth Amendment. See Hurtado v. California, 110 U.S. 516, 541 et seq., 4 S.Ct. 111, 28 L.Ed. 232.

Notes

1. As stated in Stockdale v. Hansard, (1839) 9 A. & E. 1, 114:
2. Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, is not opposed to this view. For there the pending suit was civil, not criminal, and the defense was that the congressional committee had exhausted its power to investigate, id., 290, 49 S.Ct. 270, not that it would violate due process for the federal courts to become implicated in a criminal prosecution.
3. Mr. Justice Frankfurter expressed the idea in his separate opinion in Watkins v. United States, supra:

'By * * * making the federal judiciary the affirmative agency for enforcing the authority that underlies the congressional power to punish for contempt, Congress necessarily brings into play the specific provisions of the Constitution relating to the prosecution of offenses and those implied restrictions under which courts function.' Id., at 216, 77 S.Ct. at 1194.