Quinn v. United States (349 U.S. 155)/Dissent Reed

Mr. Justice REED, dissenting.

The Court in these two cases refuses to punish petitioners, witnesses before the Committee on Un-American Activities of the House of Representatives, for refusal to answer certain pertinent questions. Such refusal is declared to be a misdemeanor by 2 U.S.C. § 192, 2 U.S.C.A. § 192.

The separate opinions are based on the conclusion that the petitioners each properly claimed for himself the privilege against self-incrimination guaranteed by the Fifth Amendment. The Court holds that questions concerning association with known communists or membership in the Party asked witnesses holding prominent positions in a local union, under investigation for communist infiltration directed at national security, might reasonably be feared as incriminatory by the witnesses. For these cases I make that assumption, too. In both the cases, the Court directs remand to the trial court with directions to acquit. This disposition of the charges excludes any factual issues for decision by the trial court as to whether the witnesses did or did not claim their privilege. It decides that, as a matter of law, the petitioners claimed their privilege by the words used by them in answer to the questions propounded by the Committee. Since the indictments contained numerous counts covering many questions asked and the evidence showed varying reasons for not answering, the conclusion that privilege was claimed blankets all questions. Since the sentences were less than the maximum penalty for one count, if the Court's determination is wrong as to any one question, its present judgments are wrong. Normally the issue as to whether a claim of privilege was made would be a matter of fact for the trial court if reasonable men might reach either conclusion. See the discussion below in the opinion of Judge Prettyman in Quinn v. United States, 91 U.S.App.D.C. 344, 203 F.2d 20, 24, and of Judge Bazelon at pages 26 and 38. None of the judges of the Court of Appeals suggested approval of such action as this Court now takes in directing acquittal. See also Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, dissent 60. This Court at least should have followed that course here.

These sweeping decisions affect the conduct of all congressional inquiries and all courts, for from the opinions there emerges a legally enforceable rule for handling hearings or prosecutions when questions raise for the witness a problem of self-incrimination. The Court, Quinn opinion, 75 S.Ct. 674, requires the interrogator, once the witness' claim though 'vague * *  * is sufficiently definite to apprise the committee of his intention' to claim his privilege, 'either to accept the claim or to ask petitioner whether he was in fact invoking the privilege.' Although this phrasing, particularly the last clause, carries for me probabilities of uncertainties in future applications that former decisions avoided, it is accepted for this case as the governing rule. My conclusion is that neither petitioner here apprised the Committee that he was claiming his privilege. As shown by the cases just cited, the privilege is personal to the witness. The reach of questions into matters that might lead to his prosecution for crime may be known only to him. Therefore the witness has the burden of doing something more than suggesting a question might incriminate him. At least, in the words of the Court, he must 'apprise the committee of his intention' to claim his privilege.

The purpose of having witnesses is to furnish to proper interrogators, subject to objections for materiality or the use of coercion, the actual facts they seek. Legislation can best be drafted and cases tried most fairly only when all pertinent facts are made available to those charged with legislation or maintenance of the peace. However, the Congress in the first series of Amendments to the Constitution wrote an exception to this duty in the instance where an answer would compel a person to be a witness against himself in a criminal case. In that situation, on a valid claim of privilege against self-incrimination, the witness may be excused from answering. That exception should neither be shriveled nor bloated. It is designed to excuse the guilty and the innocent alike from testifying when prosecution may reasonably be feared from compelled disclosures. The importance of preserving the right to require evidence, except when a witness definitely apprises the interrogating body of a valid claim of privilege, leads us to dissent.

The Court finds from the record before the Committee an apprisal by petitioners which the Committee should have understood as a claim of privilege against self-incrimination. In examining the record for this purpose, all the pertinent testimony must be considered and evaluated in the light of the purpose and abilities of the petitioners.

During an active period of national rearmament this Committee was investigating subversive and security situations in the sensitive electronic industry with a view to possible legislation. The recalcitrant witnesses held important positions in the field. Mr. Quinn was a field organizer of the International Union of the United Electrical, Radio and Machine Workers. Mr. Emspak was its General Secretary. The third witness, who is not a petitioner but whose testimony is hereafter referred to, was Mr. Fitzpatrick, chief steward of the Westinghouse Corporation local. There is nothing to indicate that the witnesses had mentalities of a quality less than one would expect from experienced officials holding such responsible positions.

It will be observed from their testimony, however, that in avoiding direct answers to specific questions each one engaged in exercises in dialectics that always fell short of advising the Committee of any intention to claim his privilege. In view of the ease with which a claim can be made by any layman, the availability of personal lawyers for these witnesses and the careful avoidance of any such statement as, 'I decline to answer on the ground of possible self-incrimination,' I cannot hold that these witnesses evidenced by their testimony an intention to claim privilege. The fact that a claim of privilege would subject the witnesses to criticism in some quarters, of course, has no bearing upon the necessity to assert one's rights. This is emphasized by the fact that long ago this Court declared that no moral turpitude is involved in refusing to answer under the protection of the privilege.

While the trial and appellate courts each had only a printed record of the testimony, one group, the subcommittees themselves, had the best opportunity to appraise disinterestedly the fact of whether Messrs. Quinn and Emspak claimed the privilege. The questions and answers were both asked by the counsel and answered by the witnesses in the hearing of the Committee. In citations of Quinn and Emspak to the House for contempt, the Committee certified that the refusal of each 'to answer the aforesaid questions deprived your committee of necessary and pertinent testimony * *  * .' It can hardly be contended that the Committee did not know a claim of privilege against answering incriminating questions would have excused the witnesses from answering.

In view of the basis of the Court's decision made on its own examination and appraisal of the record, we must necessarily set out for discussion much of the testimony to determine whether the witnesses claimed the privilege. The pertinent evidence follows.

After testifying at some length, the petitioner was asked: 'Mr. Emspak, are you acquainted with Joseph Persily?' Petitioner did not answer the question but made the following statement:

'Mr. Emspak. Mr. Chairman, I would like to say something at     this point.

'Mr. Moulder. You mean in response to the question?

'Mr. Emspak. I will answer the question; yes, in response to     the question and as a statement of position.

'What I say revolves around two points, one organizationally     and another as an individual. Organizationally, my job as an     officer of this union is to represent the interest of the      membership as they determine it at the annual conventions and      at other means they have of getting together and expressing      themselves. My job is to administer that aspect to the best     of my ability, using one very simple measuring stick, and      that is: Does a given policy or action contribute to the      well-being of the membership, individually and collectively?

'As an individual I would like to say one thing, and that is     this: The line of questioning that counsel is developing now      is a line that has been used on numerous occasions by this      committee and other congressional committees in an attempt to      harass the union, its leadership, and its members. It is a     line of questioning that goes against my grain as an      American. I was born in this country. Everything I am-

'Mr. Moulder. How long will this statement take, Mr. Emspak?

'Mr. Emspak. About two or three more minutes.

'Mr. Moulder. Proceed.

'Mr. Emspak. Everything I am, I owe to the rich heritage and     tradition of this country. I do not believe that a committee of this kind, especially in view of     the recent record of this committee where it stooped to      interfere in the partisan affairs of a local union, or any      congressional committee, because of the rich tradition of      this country which, if not perverted, will lead to a greater      and better country-I don't think a committee like this or any      subcommittee has a right to go into any question of my      beliefs, my associations, or anything else. I have a couple     of kids. They have a stake in this country, too.

'Mr. Moulder. I want to give you full opportunity to express     yourself in answer to the question, but you are making an      oration now.

'Mr. Emspak. It is not an oration. It happens to be a very     profound personal feeling.

'Mr. Moulder. What is the question?

'Mr. Tavenner. The question is: Are you acquainted with     Joseph Persily.

'Mr. Moulder. How do you spell that?

'Mr. Tavenner. P-e-r-s-i-l-y.

'Mr. Emspak. Because I have a stake in this country-

'Mr. Moulder. You are not answering the question. He asked     you if you are acquainted with this man.

'Mr. Emspak. I will answer it.

'Mr. Moulder. Are you or not?

'Mr. Emspak. I was on the verge of answering it.

'Mr. Moulder. If you have any explanation to make you will be     permitted to do so after you answer the question.

'Mr. Emspak. Because of my interest in what is going on these     days, because of the activities of this committee-

'Mr. Moulder. Are you going to answer the question? 'Mr. Emspak. Because of the hysteria, I think it is my  duty to endeavor to protect the rights guaranteed under   the Constitution, primarily the first amendment,   supplemented by the fifth. This committee will corrupt  those rights.

'Mr. Moulder. Do you think it corrupts you to answer the     question?

'Mr. Emspak. I certainly do.

'Mr. Moulder. Why does it corrupt you?

'Mr. Emspak. Your activities are designed to harm the working     people of this country. Every action this committee has ever     taken has done that. You interfered last summer in the     election of a local union at the request of a priest. You     know that. You dragged down the prestige of this country.

'Mr. Moulder. You are not going to take over this committee.

'Mr. Emspak. I don't want to.

'Mr. Moulder. And your statements are preposterous. The     purpose of this committee is to expose communism as it exists      in this country. What is the question?

'Mr. Tavenner. Are you acquainted with Joseph Persily?

'Mr. Emspak. For the reasons I stated before, I answered it.

'Mr. Moulder. Then you refuse to answer the question?

'Mr. Emspak. No. I answered it.

'Mr. Tavenner. Are you or are you not acquainted with Joseph     Persily?

'Mr. Emspak. I answered the question.

'Mr. Tavenner. Your replies are a refusal to comply with the     request to answer it?

'(Witness confers with his counsel.) 'Mr. Moulder. The record will reveal that you have not  answered the question.

'Mr. Emspak. I have answered it to the best of my ability     under the circumstances.'

In answer to subsequent questions, the petitioner simply referred to his prior answer. Later on, the following statements were made:

'Mr. Emspak. Mr. Chairman, on these questions, which are all     essentially the same, of course, when this hearing was      announced according to the press reports, at least, it was      announced because this committee presumably was interested in      finding out things with reference to individuals in our      organization by using whatever means it has at its disposal,      and for the purpose of trying to perhaps frame people for      possible criminal prosecution.

'I don't see how or why any individual should be subjected to     that kind of questioning here if he is going to maintain, you      know, his feelings on these questions, and I tried to express      the feeling before when you interrupted me. I just don't     intend, as I said then, to be a party to any kangaroo court      proceedings of this committee or any other congressional      committee. I think I have the right to reserve whatever     rights I have in that respect to whatever appropriate bodies      may be set up to deal with questions that come up.

'Mr. Moulder. Do you mean to say you have people in your     organization who have information that would subject you to      criminal prosecution?

'Mr. Emspak. No; I don't, Mr. Chairman. As a basic     proposition-and it has worked over the years and over the      last few months as far as this committee is concerned-a slick      job- 'Mr. Moulder. Do you know them or not?

'Mr. Emspak. That does not concern this committee at all.

'Mr. Moulder. Is it your feeling that to reveal your     knowledge of them would subject you to criminal prosecution?

'Mr. Emspak. No. I don't think this committee has a right to     pry into my associations. That is my own position.'

No more of the record is printed, as the excerpt shows the exchange between the Committee and petitioner upon which Count I of the indictment and the constitutional issues arising thereunder are based. This related to his acquaintanceship with Joseph Persily, a man who had been listed, according to a stipulation, as a person named as an official 'of the UERMWA with Communist or Communist Front Affiliations.' Nothing more favorable to petitioner's position appears on the questions examined or any other question.

As the Emspak case offers for me a clear example of failure to claim his privilege, I think it better not to encumber this opinion unnecessarily with quotations from the Quinn case.

In the Quinn case, the witness adopted in its entirety the testimony of a former witness, Mr. Thomas J. Fitzpatrick, chief steward of Local No. 601, United Electrical, Radio and Machine Workers of America. Mr. Quinn's testimony establishing his reliance on Mr. Fitzpatrick's evidence will be found in this Court's opinion in the Quinn case, supra, note 8, 75 S.Ct. 671. The hearing opened with a declaration by Mr. Fitzpatrick of minority rights to secrecy as follows:

'The Constitution of this country provides certain protection     for minorities and gives the privilege for people to speak      and think as they feel that they should and want to. It also gives the privilege that people     can have opinions or beliefs that may be unpopular. In my     opinion, it gives them the right to hold those opinions      secret if they so desire. This is a protection of the first     amendment to the Constitution, supplemented by the fifth      amendment.

'Mr. Wood. What is?

'Mr. Fitzpatrick. The right of the people guaranteed by the     Constitution.'

This certainly indicated no claim of the privilege against self-incrimination. Mr. Fitzpatrick was then asked: 'Are you now or have you ever been a member of the Communist Party?' After fencing with the Committee about prying into his mind, he said:

'Mr. Fitzpatrick. I will answer the question. The     Constitution guarantees the right to me and every other      citizen to have beliefs, whether they are popular or      unpopular, and to keep them to themselves if they see fit,      and I have no intention of being a party to weakening or      destroying that protection in the Constitution. I feel when I     take this position that I am one of the real Americans, and      not like some of the phonies who appear here.'

Later on he was asked whether he had asked a Mr. Copeland to sign an application for membership in a Communist organization. In answer to that question this occurred.

'Mr. Fitzpatrick. Mr. Chairman, do I have to give you my     answer again?

'Mr. Wood. I just want to know whether you did that one     thing.

'Mr. Fitzpatrick. I say if I did or if I did not, regardless     of what I did, it is not the affair of this committee to pry      into this kind of action.

'Mr. Wood. And for that reason do you decline to answer  the question?

'Mr. Fitzpatrick. I stand on the protection of the     Constitution, the first and fifth Amendments.

'Mr. Wood. And for those reasons decline to answer the     question further?

'Mr. Fitzpatrick. I have answered the question.

'Mr. Wood. I say, do you decline to answer it further?

'Mr. Fitzpatrick. I have no further comment on it.'

The two references to the First and Fifth Amendments are the only phrases in the whole examination that could be thought to refer to a claim of immunity against self-incrimination.

From these vague statements of Messrs. Quinn and Emspak the Court draws the conclusion that they were sufficient to apprise the Committee of the witnesses' intention to claim the privilege against self-incrimination. The Court finds support for its theory of 'intention' to claim privilege from a statement in the Government's brief in the Quinn case set out below. With all respect, I fail to see any concession by the Government of evidence that should apprise the Committee of a claim of privilege against self-incrimination. The first sentence of the quotation from the brief emphatically denies the Court's assumption.

What the records show to me is a calculated effort by Messrs. Quinn, Emspak and Fitzpatrick to hinder and delay a congressional committee in its effort to bring out facts in order to determine whether or not to undertake legislation. Such quibbling evades the basis for an understanding of the attitude of the witness as to privilege. It does not apprise the Committee of the claim of privilege and should not be held permissible. Factual testimony is the means for the ascertainment of truth in legally organized inquiries. Silence brings the proceedings to a dead end. The burden is on the witness to advise his interrogators of a claim to privilege in understandable terms. In the context of this testimony, the adoption by Mr. Quinn of Mr. Fitzpatrick's reference to the First and Fifth Amendments smacks strongly of a 'due process' Fifth Amendment claim. Mr. Fitzpatrick had been speaking of his right of privacy, speech and association, not of the privilege against self-incrimination. He then added:

'Mr. Chairman, if you want to ask me questions about my     actions of loyalty, question my loyalty, you have a right to      do so and I will answer them. So far as my political     opinions, I have stated my position on that. You are asking     the same question in a different way. But if my memory is     right, there was no such thing as a Communist Party when that      affidavit is supposed to have been.' The same attitude shows through Mr. Emspak's testimony. In addition there was a direct refusal by Mr. Emspak to claim privilege. See 75 S.Ct. 681, 682, supra.

The Court suggests that this should not be construed as a waiver of the claim and cites Smith v. United States, 337 U.S. 137, 151, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264. I do not think the Smith case apposite. In that case there had been a clear claim of privilege for immunity. We held that required a definite, unambiguous waiver. Here there was, in my view, no claim of privilege.

The opinion of the trial court, printed only in the record, pp. 224-227, holds 'The defendant failed to assert (the privilege).' Six of the nine members of the Court of Appeals held that Emspak had not claimed. Three did not reach that issue.

I concur with the Court in its assertions of the value of the self-incrimination clause-that it may be used as a shield by guilty and innocent alike-and that it should be construed liberally as it has been to cover more than the literal reading of the phrase 'No person * *  * shall be compelled in any criminal case to be a witness against himself' would suggest. This sympathetic attitude toward the clause should not lead us to intrude our ideas of propriety into the conduct of congressional hearings. The rule laid down by the Court today merely adds another means for interference and delay in investigations and trials, without adding to the protecton of the constitutional right of freedom from self-incrimination. This is contrary to the policy of Congress to get information from witnesses even with a claim of immunity, through the Compulsory Testimony Act of August 20, 1954, 68 Stat. 745, 18 U.S.C.A. § 3486 and note preceding § 3481.

II. Direction to Answer.

The Court advances a second ground in the Quinn and Emspak cases for its direction that the District Court enter a judgment of acquittal. This is that a deliberate intent to refuse to answer the Committee's questions is required for the judgment of contempt. The Court explains, Quinn case, 75 S.Ct. 675, that intent may be implied only when the witness is 'clearly apprised that the Committee demands his answer notwithstanding his objections,' and, Emspak case, 75 S.Ct. 694 'without such apprisal, there is lacking the element of deliberateness necessary for a conviction under § 192 for a refusal to answer.' The Court concludes that the witness was not 'specifically' directed to answer, or otherwise informed as to the disposition of his objections.

The Court must admit, as it does, Quinn Opinion, 75 S.Ct. 673, that no particular form of words is required. On the other hand, I must admit that a witness must be clearly apprised that his claim of the freedom from an obligation to answer is not accepted by the interrogator. I agree that the offense punishable under the statute is a deliberate, intentional refusal not an inadvertence, accident or misunderstanding. Good faith in refusing to answer, however, is no defense so long as the refusal is intentional, deliberate. Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 274, 73 L.Ed. 692, points out that:

'The gist of the offense is refusal to answer pertinent     questions. * *  * Intentional violation is sufficient to      constitute guilt.'

United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, involved a statute very similar to the one here involved. In that case, Murdock had been called to testify before an Internal Revenue Agent and refused to answer certain questions on the ground that he might be incriminated under state law. We said in that case:

'While undoubtedly the right of a witness to refuse to answer     lest he incriminate himself may be tested in proceedings to      compel answer, there is no support for the contention that      there must be such a determination of that question before      prosecution for the willful failure so denounced. By the very     terms of the definition the offense is complete at the time      of such failure.' 284 U.S., at page 148, 52 S.Ct., at page      64.

There was no direction to answer in either case. While the point was not raised, their holding as to what establishes the offense does not include a specific direction to answer as one of the elements.

While the Court held in Sinclair that deliberate refusal was all that was required to consummate the offense under 2 U.S.C. § 192, 2 U.S.C.A. § 192, at the same time we were at pains to point out 'There was no misapprehension' on the part of the witness 'as to what was called for.' 279 U.S. at page 299, 49 S.Ct. at page 274. It is because the refusal must be intentional, that the witness must know that his excuses for not answering have not been accepted by the Committee. When a witness interposes objections to testifying which are not frivolous, it is difficult to say he intentionally refused to answer when the interrogation continues without pause to some other question. I agree that the Committee cannot, in fairness to the witness, lull him into thinking that his refusal to answer is acceptable and then cite him for contempt. Refusal under such circumstances would not be deliberate. However, specific direction to answer is not necessary; only intentional refusal is.

The Court suggests, note 36, Quinn case, 75 S.Ct. 676, that congressional committees follow the practice of other legislative bodies and determine first the validity of the witness' reason for failure to answer and then direct him to answer. The defect in that analogy is that the Court seems to assume in its note a formal vote and a specific direction to answer. I think such a specific direction is inconsistent with its admission that no ritualistic formula is required. 75 S.Ct. 677. No provision of the statute, nor of any rule of Congress is cited by the Court to support a requirement of specific direction. The Court of Appeals held direction to answer unnecessary so long as the witness knew that the Committee had not acceded to his refusal. As I stated above, in my view it is sufficient if the witness knows his excuses are not acceptable to the Committee and that he is required to answer. Whether or not the witnesses knew this in these two cases is the question on this second point.

The Court holds that the witnesses did plead the privilege and were not advised that the Committee refused to accept their pleas. I disagree. After Mr. Quinn had adopted Mr. Fitzpatrick's words as his own method of refusing to answer the question as heretofore discussed, it will be seen that Mr. Wood, a Committee member, said to Mr. Quinn:

'Mr. Wood. You have stated your position. Having enunciated     your sentiments and your position, will you now answer the      question whether you are now or ever have been a member of      the Communist Party, or do you decline to answer?

'Mr. Quinn. I decline to discuss with the committee questions     of that nature.'

This, I think advised Mr. Quinn that the Committee refused to accept his reply as a satisfactory excuse and required him to proceed.

I think, too, that Mr. Emspak was advised his answer was not accepted and that he was required to proceed. When he was asked repeatedly as to whether he was acquainted with Joseph Persily, he said again:

'Mr. Emspak. For the reasons I stated before, I answered it.

'Mr. Moulder. Then you refuse to answer the question?

'Mr. Emspak. No. I answered it.

'Mr. Tavenner. Are you or are you not acquainted with Joseph     Persily?

'Mr. Emspak. I answered the question.

'Mr. Tavenner. Your replies are a refusal to comply with the     request to answer it?

'(Witness confers with his counsel.)

'Mr. Moulder. The record will reveal that you have not     answered the question.

'Mr. Emspak. I have answered it to the best of my ability     under the circumstances.'

On continued questioning as to Mr. Persily, he continued, 'I will give the same answer.' I cannot but conclude, as did the lower courts, that the witness Emspak was adequately informed that his objections were refused and that he must answer.

The Court directs acquittal of both petitioners on the grounds of claim of privilege and failure to specifically overrule their objections or direct them to answer. I disagree with both grounds. Confining expression of my views to those issues, I dissent.

Mr. Justice MINTON joins in so much of this opinion as applies to Emspak v. United States.