THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATIONABOLITION, IMMUNITY OR STATUS QUO*
I. Introduction
During the period from January 1, 1924 to January 1, 1954 there were
certified to the United States Attorney for the District of Columbia from
the Congress over 100 cases alleging contempt of the Congress. Of this
number only one case came up during the twenties, only three during the
thirties, forty-six during the forties and, strikingly, more than half the
total during the last four years of the three decades.!
For present purposes the disposition of these cases is of little consequence; what is important is that in a large majority of them the individual charged had invoked the privilege against self-incrimination guaranteed by the Fifth Amendment of the Constitution This increased
reliance on the privilege indicates that those words of the Constitution
reading: "No person ... shall be compelled in any criminal case to be a
witness against himself.. ." have assumed tremendous importance.
Why is this so? What has caused such frequent mouthing of the
phrase, 'I refuse to answer on the ground that my answer might tend to
incriminate me'? Has the privilege lately become just a working tool of
the lawyer's kit or has its use in the past been confined to less glamorous
circumstances than congressional hearings? Is this use really an abuse
which argues for abolition of the privilege? If not, is it merely an unavoidable concomitance which argues for greater power to grant the
reluctant witness immunity from prosecution under circumstances which
make the securing of answers to the questions propounded of overriding
importance? Taking the privilege as it stands today, does the witness by
his invocation actually secure the protection he seeks or is this constitutional guarantee really a trap and a delusion? Finally, does the history
of the privilege justify the judicial interpretations of it?
Answers to these questions are not easy to find. The myriad of decisions and writings, ofttimes conflicting or equivocal, preclude any categorical replies. It is necessary to go back to the seventeenth century and
trace the history and development of the privilege before any attempt can
be made to express an opinion regarding what the answers should be. In
an effort to treat of only the most current problems this paper is confined
to an analysis of the privilege as invoked by a witness before a grand
jury (where the witness is not the accused), a committee of Congress
and an administrative agency.
* By William Porter, B.S., L.L.B., American University, while a student at the Washington
College of
mural Law
1 From
Columbia.
2 U. S.
Law, American University. Former Editor-in-Chief of American University IntraRevew. Member of the bar of the Dstrict of Columbia.
information supplied by the office of the United States Attorney for the District of
Const. Amend. V.
[111
3
II. Historically
It seems to be unanimously conceded that opposition to the hated oath
'ex officio' of the ecclesiastical courts' and the criminating question of the
common law courts were most instrumental in establishing the privilege in
England. This opposition was dramatically pointed up by the trial and
conviction of John Lilburn upon his refusal to answer upon his oath when
accused of publishing or importing seditious and heretical writings.'
The public sentiment created 'because of Lilburn's conviction led to the
abolition of the Courts of Star Chamber where the oath 'ex officio' was
used. It also led to the introduction of the doctrine that 'no man is
bound to be his own accuser': Nemo tenetur seipsum accuare. While
this took place during the period from 1637 to 1641 it is agreed that
the privilege, as it is known in England today, did not emerge until the
nineteenth century.
The most interesting thing about the privilege in England is this. Even
though the authorities generally agree that the privilege came into the
English law by accident, or at best by indirection0 , it is manifestly a well
settled common law rule. It is not a part of the statutory law. It should
also be noted that the privilege began as a procedural rule of evidence
and not a fundamental right; a rule which allowed the accused to stand
mute before his accusers.
The development of the privilege in this country is somewhat more
clouded with contradictions. That the early settlers were ardent in their
desire to free themselves from the inquisitions and tyrannies of the old
world does not admit of doubt, but it is a matter of historical record
that this desire was not fully realized until the revolution. The agitation
in the colonies for the privilege, which 'began when word reached them
of the Lilburn case, led to its inclusion as a part of the common or
statute law 'by 1776.
Even so, the original Constitution did not contain any reference to it.
This led some authorities to conclude that the insistence upon inclusion
3 The material following in the text is based upon the following historical analyses: 8
Wigmore, Evidence § 2250 (3d ed. 1940); Pittman, The Colonial And Constitutional Hhtory
Of The Privilege Against Self-Incrimination In America, 21 Va. L. Rev. 763 (1935); Morgan.
The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1 (1949); Maguire, Attach Of The
Common Lawyer On The Oath Ex Officio As Administered In The Ecclesiastical Courts In
England, Essays In History And Political Theory In Honor Of Charles Howard McIlwain, c.
VII, p. 199 (Cambridge 1936).
4 The oath 'ex officio' had its beginning about the thirteenth or fourteenth century as a
part of the heresy proceedings in ecilesiastical courts. It consisted in having the accused, on
is oath, swear his innocence and if he would not, then the charge exhibited against him
was taken for truth. The effect was that the accused was placed in the position of being
considered guilty until proven innocent. Great pressure sometimes even torture, was applied
to make the accused swear his guilt or innocence. The oath was sanctioned by statute in
England in 1401 (St. 2 H. IV, c. 15). It retained its original form until 1533 when it was
required that there be a presentment or indictment of the accused or that there be an accuseation by two lawful witnesses (St. 25 H. VIII, c 14). In 1558 the church's power to try
alleged heretics was abolished and dhe Court of High Commission created for that purpose
(St. 1 Eliz. c. 1, § 15). The Court of Star Chamber, so called because its sessions were originally held in a chamber decorated with stars on its ceiling, was created in 1487 (St. 3 H.
VII, c. 1) but was not actively in use until the reign of Elizabeth. It was a chancery court
of general jurisdiction; an offshoot of the Privy Council. Both of these courts followed the
procedural rules of the ecclesiastical courts and the accused was put on his oath. The regard
for these courts was very high until the latter part of the sixteenth century, but early in the
seventeenth century by judicial decision, their power was cut so that they could no longer
put laymen upon their oath to answer 'ex officio' to penal charges. Dissatisfaction with them
continued to mount until the trial of John Lilburn, and shortly after that they were abolished
(St. 16 Car. I, cc. 10, 11 1641]).
SLilburn's sentence included being whipped publicly "from the Fleet Prison to Palace
Yard". But, later, after the abolition of the Courts of Star Chamber, the House of Lords
set aside the prison sentence and awarded him f1300 as reparations.
8 Wigmore, op. cit. supra note 3; 1 Stevens, History Of The Criminal Law, 342 (1883).
of the privilege in the Bill of Rights was due in no small measure to the
agitation then going on in France against the Inquisitional Ordonnance
of 1670.' However, it has been demonstrated that at the time of this
French agitation, in 1789, there were seven American states which had
already included the privilege in their bills of rights.' It also noted that
in a speech on the floor of the French National Convention, in August
of 1789, Rabout de Saint Ettienne said:
"You have resolved upon a Declaration of Rights because your
Cashiers impose it as your duty and your Cashiers mention it because
France has had America as its model."'
Therefore, since the current of opinion appears to have been running
from America to France rather than from France to Ameica, the following
declarations appear to be the most logical explanation of the insistence on
constitutional inclusion. Pittman says:
"[Iti may possibly be traced to the prerogative courts of Governor
and Council, which... were very inquisitional and ofttimes overbearing ..."10
and his explanation is reinforced by what Patrick Henry and Abraham
Holmes had to say during the debates over the adoption of the Constitution. Henry said:
"Congress may introduce the practice of the civil law in preference
to that of the common law .... They may introduce the practice...
of torturing to extort the confessions of the crime."'
and Holmes concurred:
"There is nothing to prevent Congress from passing laws which
shall compel a man, who is accused or suspected of a crime,
to furnish evidence against himself, and even from establishing laws
which shall order the court to take the charge exhibited against
a man for truth, unless he can furnish evidence of his innocence. '
Thus it was that the privilege, which entered the common law by accident or indirection as a procedural rule of evidence, became a part of
the Fifth Amendment to the Constitution of the United States. It became a constitutional guarantee against the use of federal power to force
self-incriminating testimony from a person."t
It should be noted here that the provision as originally proposed read:
14
"No person... shall be compelled to be a witness against himself..."
This wording was amended at the instance of John Laurence of New York
by inserting the phrase, "in any criminal case".' This is significant
because it indicates a desire on the part of Congress and the proponents
of the privilege to confine it to its original common law orbit as a procedural rule of evidence in a criminal case or proceeding.
I Ascribed to by Wigmore in the first and second editions of his work on evidence.
s Pittman, =qpranote 3. The states were Virginia, Pennsylvania, Maryland, North Carolina, Vermont, Massachusetts and New Hampshire.
Pittman, sspra note 3, at 765.
1. Id. at 783-784.
u Virginia Debates, p. 318.
12II Elliott's Debates, p. 111.
13 Palko v. Connecticut, 302 U.S. 319 (1937).
1"1 Annals of Cong. 434 (1789).
Is Id. at 735.
E31
Ill. Judicial Interpretation
While the use of the privilege in the early days of its constitutional life
was confined almost exclusively to defendants in criminal trials or proceedings, there were indications that interpretations of its meaning and
scope would present many problems. One of these early interpretations
was by Chief Justice Marshall in 1807, during the trial of Aaron Burr.
When the question of the privilege arose in connection with the testimony of one Willie, Marshall said:
"The counsel for the United States have also laid down the rule
according to their understanding of it; but they appear to have made
it as much too narrow, as counsel for the witness have made it too
broad. According to their statement, a witness can never refuse to
answer any question, unless the answer unconnected with other
testimony, would be sufficient to convict him of a crime. This would
render the rule perfectly worthless. Many links frequently compose
that chain of testimony, which is necessary to convict any individual
of a crime. It appears to the court to be the true sense of the rule,
that no witness is compellable to furnish any one of them against
himself .. "'
Thus began the now famous link in a chain theory of self-incrimination.
The theory which has been the cause of most of the difficulty experienced
by witnesses who would invoke the protection of the privilege, This point
is discussed more fully below.
In the case of Boyd v. United State?' the Supreme Court, in discussing
"the intimate relationship" between the Fourth and Fifth Amendment,
was unable "to perceive that the seizure of a man's private books and
papers to be used in evidence against 'him is substantially different from
compelling him to be a witness against himself".' The Court was of
the opinion that even if the action was "civil in form" but in the nature
of a suit for penalties and forfeitures", in other words of a "quasicriminal" nature, then it was within "the reason of criminal proceedings
for all purposes of the Fourth Amendment... and the self-incrimination
clause of the Fifth Amendment".
This, of course, broadened the scope of the term "criminal case" and
applied the privilege to books and papers of the witness. But it remained for a unanimous Court in Counselman v,. Hitchcock" to spell out
its meaning as applied to grand jury proceedings. There Mr. Justice
Blatchford stated the proposition in these words:
"... This provision must have a broad construction in favor of
the right it was intended to secure. The matter under investigation
by the grand jury was a criminal matter... If Counselman 'had been
guilty of the matters inquired of in the questions which he refused to
answer, he himself was liable to criminal prosecution... The case
before the grand jury was therefore a criminal case...,,
10
United States v. Burr, 25
17116 U.S. 616 (1886).
Fed. Cas. 38, 40, No. 14692e (C.C. D. Va. 1807).
1s See on this point Feldman v. United States, 322 U.S. 487 (1944): Agnello v. United
States. 269 U.S. 20 (1925); Gouled v. United States, 255 U.S. 298 (1921).
142 U.S. 547 (1892).
20Id. at 562.
[4]
By its ruling the Court refused to agree with Judge Denio of the Court
of Appeals of New York, who, in People v. Kelly', while interpreting
the New York Constitution's counterpart of the Fifth Amendmentf,
confined the term criminal case to situations where the witness was questioned in "a prosecution against himself". Justice Blatchford, in speaking
of this decision, said:
.This ruling... seems to us, as applied to the provisions in the
Fifth Amendment to the Constitution of the United States, to take
away entirely its true meaning and value."'
The extension of the privilege to witnesses before legislative and
administrative bodies was presaged in 1871 in a Massachusetts' Supreme
Court case. This was Emery's Case." In 1931 a New York case, Matter
of Doyle," which, inter alia, indicated that the holding in People v.
Kelly' had been overruled, held that the privilege was available to witnesses before legislative bodies. In speaking of these decisions one writer
has said:
"... These well considered decisions, together with the assumptions and intimations in the opinions of the United States Supreme
Court, as well as the generally accepted practice before legislative
tribunals, seems to warrant the prediction that the privilege will
generally be held available to witnesses in legislative investigations ... "'
That the privilege is accorded witnesses before legislative bodies is now
conclusively presumed, though the question has not been ruled on by the
Supreme Court directly."
In Twining v New jersey* the Court held that the privilege was not
one of national citizenship, and, therefore, not one guaranteed against
abridgement by the states under the Fourteenth Amendment.'
It has
also been held that a witness who fears state prosecution may not invoke
the privilege in a federal proceeding," nor may he claim its protection
in a state proceeding if he fears only federal prosecution." The protection
of the privilege has been accorded to resident aliens," to witnesses in
cases where the evidence to be used against them bad been illegally
seized," and to witnesses in regard to their personal books, papers and
- 24 N.Y. 74 (1861).
32 N.Y. Const. Art. 1, 1 6 (1846).
32 142 U.S. at 563.
21 107 Mass. 172 (1871).
25257 N.Y. 244, 177 N.E. 489 (1931).
"24 N.Y. 74 (1861).
"Morgan. supra note 3. at 33.
SMarcello v. United States, 196 F.2d 437 (5th Cir. 1952); United States v. DiCarlo, 102
F.Supp. 597 (N.D. Ohio 1952)' United States v. Emspak, 95 F Supp. 1012 (D.C. D.C. 1951);
Liacos, Rights Of lViltne:sei Be)ore Congressional Committees, 33 Boston L. Rev. 337 (1953);
Dodd, Sel -Incrimination By Witesajs Before Congressional Committee, 11 F.R.D. 245.
"211
0 U.
U.S. 78 (1908); accord Hale v. Henkel, 201 U.S. 43 (1906).
S. Const. Amend. XIV.
atUnited States v. Murdock, 284 U.S. 141 (1931); cf Jack v. Kansas, 199 U.S. 372
(1905).
SFeldman v. United States, 322 U.S. 487 (1944).
a, Shinyu Noro et al. v. United States, 148 F.2d 696 (5th Cir. 1945).
34 Agnello et al. v. United States. 269 U.S. 20 (1925); Gibson v. United States, 149
F.2d 381 (D.C. Cir. 1945). Bat cf. Burdeau v. McDowell, 256 U.S. 465 (1921), where the
Supreme Court held the use of papers stolen by a third party, without the connivance of the
United States or its agents, was not a violation of the defendant's privilege in a subsequent
trial in a Fedaral court. However in Gambino et. al. v. United States, 275 U.S. 310 (1927),
the Court held that whiskey seizeJ by state officers and turned over to federal agents was not
admissible in evidence, relying on the premise that under the National Prohibition Act, 41
Star. 305, 27 U.S.C.
5
11,
it was contemplated that the state and federal agencies would
work together on enforcement of the Act.
[51
documents.' This latter holding is denied to bankrupts, however, who
must produce their assets and -books. But, the -bankrupt may refuse under
the privilege to testify to any matters concerning them."6 The protection
of the privilege has been denied to corporations and associations such as
labor unions so that the officer or stockholder custodian of its records
can be compelled to produce them, even though such production may
tend to incriminate him. ' In other words the privilege is purely personal
and must be claimed as a protection against self-incrimination and not
as a protection for some third party."
The protection of the privilege is not accorded to papers of a "quasi
public" nature." If the statute of limitations has run against the crime
which would be disclosed,"' or, if the witness has already received a
pardon, ' he must answer and may not set up the privilege as a bar. But,
the tender of a pardon may be rejected and the witness then fall back upon
the privilege. " The fact that the answer might tend to disgrace or degrade
the witness is not sufficient grounds for refusal to answer if the query is
pertinent.' There can be no temporary suspension of the privilege, not
even during the existence of a state of war."
The privilege may be waived, ' and if a witness begins a disclosure he
is not permitted to stop short of complete disclosure." This proposition
'
was strikingly illustrated in the case of United States v. St. Pierre"
where
Judge Learned Hand, in speaking for a divided court, held that an embezzler who had admitted the crime could not stop there but must
furnish the name of the person whose money he had embezzled. This,
even though he could not be convicted without that name. The Supreme
Court granted certiorari, ' but dismissed the appeal as moot because the
defendant had served his sentence when the argument came up.' In
speaking of this decision in a later case,' the Court intimated that the
question raised there was still open by saying:
"We, of course, do not pass upon the precise factual question there
decided by the Court of Appeals."" The St. Pierre case has not been well
received by the courts because it places the witness in a very unenviable
position. If he invokes the privilege too soon he is subject to punishment
"Boyd v. United States,
116 U.S. 616 (1886); Internal Revenue Agent v. Sullivan et al.,
287 Fed. 138 (W.D. N.Y. 1923).
"*McCarthy v. Aridstein, 266 U.S. 34 (1924); Dier v. Banton, 262 U.S. 147 1923).
StOklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946) (corporation) United
States
v. White, 322 U.S. 694 (1944) (labor union); Grant v. United States, 227 U.S. 74
(1913) (stockholder in defunct corporation); Wheeler v. United States, 226 U.S. 478 (1913)
(corporate officer); Wilson v. United States, 221 U.S. 361 (1911) (corporate officer); McAlister
v. Henkel, 201 U.S. 90 (1906) (corporate officer); Hale v. Henkel, 201 U.S. 43 (1906)
(corporate officer).
"Hale v. Henkel, 201 U.S. 43 (1906).
"Shapiro v. United States, 335 U.S. 1 (1948); Wilson v. United States, 221 U.S. 361
(1911); Rodgers v. United States, 138 F.2d 992 (6th Cir. 1943).
40 Brown v. Walker, 161 U.S. 591 (1896); Close v. Olney, I Denio 319 (N.Y.1845).
.1Hale v. Henkel, 201 U.S. 43 (1906); Brown v. Walker, 161 U.S. 591 (1896); Roberts
v. Allatt, Mood. & Malk. 192, 173 Eng. Rep. 1128 (1828).
2Burdick v. United States, 236 U.S. 79 (1915).
4 Sinclair
v. United States,
279 U.S. 263 (1929); Brown v. Walker. 161 U.S. 591 (1896);
Lohman v. People, 1 N.Y. 379 (1848).
"1United States v. Cohen Grocery Co., 255 U.S. 81 (1921).
4-United States ex rel Vajauer v. Commissioner of Immigration, 273 U.S. 103 (1927).
48Brown v. Walker, 161 U.S. 591 (1896); Commonwealth v. Pratt, 126 Mass. 462
(1879); Law v. Mitchell, 18 Maine 372 (1841).
4T132 F.2d 837 (2d Cir. 1942), 56 Harv. L. Rev. 832.
4"318 U.S. 751 (1943).
4319
U.S. 41 (1943).
"4 Rogers v. United States,
340 U.S. 367 (1951).
51ld at375, footnote 19.
[6]
for contempt, while if he invokes it after he has answered one question
which is a link in the chain of incriminating evidence he may be deemed
to have waived it." This proposition is further complicated by the fact
that in any prosecution for contempt the witness is subject to the court's
determination as to whether the question in issue, if answered directly,
could possibly incriminate.' However, if it could, then the witness alone
must determine if it would."
IV Grants Of Immunity
It comes as no surprise that, because of the protection afforded by the
privilege, ways were early sought to obtain the needed testimony without
running afoul of the constitutional guarantee. It has been stated that
"for more than three centuries it has now been recognized that the public
has a right to every man's evidence."' To this end, as early as 1857, Congress began to experiment with statutes which granted immunity from
prosecution for any crimes disclosed during testimony being given by a
witness." This first enactment did not prove satisfactory and, because of
the valid attacks made upon it by memers of Congress," it was revised
in 1862." This revision, however, did not solve the problem because in
1892 one of the sections of the new statute, dealing with immunity in
courts and before grand juries, was invalidated by the Supreme Court in
the case of Counselman v Hitchcock." The Court in holding that the
statute did not grant immunity coextensive with the privilege under the
Fifth Amendment said:
"...That section [R.S. 860 (1875)] must be construed as declaring that no evidence obtained from a witness by means of judicial
proceeding shall be given in evidence, or in any manner used
against him or his property or estate, in any court of the United
States, in any criminal proceeding, or for the enforcement of any
penalty or forfeiture.... This, of course, protected him against the
use of his testimony against him or his property in any prosecution
against him or his property, in any criminal proceeding in a court
of the United States. But it had only that effect. It could not, and
would not prevent the use of his testimony to search out other
testimony to be used in evidence against him or his property, in a
criminal proceeding in such court...""
'5 For an excellent discussion of this proposition see Mr. Justice Black's dissent in Rogers
v. United States, 340 U.S. at 375. See also, Huard, The Fifth Amendment-An Evaluatton,
42 Geo. L. J. 345 (1954).
"Hoffman v. United States, 341 U.S. 479 (1951); Mason et al. v. United States, 244
U.S. 362
Ibid.(1917); United States v. Burr, 25 Fed. Cas. 38, 39, No. 14692c (C.C.D. Va. 1807).
"United States v. Bryan, 339 U.S. 323, 331 (1949).
N Cong. Globe 34th Cong., 3d Sess. 427, 433 & 455 (1857). This first enactment was
the granting of a legislative pardon for crimes disclosed in testimony before either House. It
was widely abused and many witnesses connived to get themselves called to testify in order
to get an 'immunity bath".
N Especially Senator Lrman Trumbull of Illinois, who during debate, posed the hypothetical proposition of a clerk in the Interior Department stealing $2,000,000 in bonds and
going free after his "immunity bath".
"Rev.
Stat. §1 859 & 860 (1875).
as142 U.S. 547 (1892) .... fCounselman was questioned before a Federal grand jury in
Illinois concerning alleged violations of the Interstate Commerce Act of 1887 by certain
railroads. He refused to answer questions as to the receipt by his company of rebates, drawbacks and commissions which would have constituted a reduction of the legal tarrifs and a
criminal offense by him and his company. He was adjudged in contempt, fined and sentenced,
and when his petition for a writ of habea corpus was denied, 44 Fed. 268, he appealed.)
0Id. at 564.
[7]
Congress, however, even in the face of this decision, did not repeal the
entire statute when it repealed the section here held invalid." The feeling
of Congress that the section dealing with witnesses before congressional
committees had some value was reiterated in 1938 when it was amended to
cover hearings before joint committees of Congress.' Recent vindication
of this congressional feeling may he found in the case of Adams v. Maryland.' There the State of Maryland convicted the defendant of conspiracy
to violate the lottery laws of the state, solely on testimony which he had
given before the Special Committee to Investigate 'Crime in Interstate Commerce." The Court of Appeals of Maryland had held that the defendant
(1) had not claimed any immunity before the committee and was therefore a volunteer, (2) that the statute applied only to United States courts
and (3) that the Congress did not have the power to deny a state the use
of testimony taken before a congressional committee.'
The Supreme Court was unanimous in its opinion that the defendant
was not a volunteer because he was under subpoena to appear and that if
he had failed to testify he would have been liable to fine and imprisonment under 2 U.S.C. § 192." On the scope of the statute the Court said:
"Nor can we hold that the Act bars use of 'Committee testimony
inUnited States courts but not in state courts. The Act forbids use
of such evidence 'in any criminal proceeding ...in any court.' ...
To construe this phrase as having any other meaning would make the
Act a trap for the unwary."'
The Court then held that the Constitution of the United States and the
laws made pursuant thereto are the supreme law of the land and that a
state is therefore bound -by an act of Congress such as the one here drawn
in question. The further argument that the Act did not give the complete immunity required to make it co-extensive with the privilege, and,
therefore, that the Court was bound by Counselman v. Hitchcock," was
disposed of by the Court in the following words:
".... Because Congress did not get all it hoped for we are urged
to deny witness the protection the statute promises.... [We] reject
the implication that a general Act of Congress is like a private contract which courts should nullify upon a showing of partial or total
failure of consideration...."D
Mr. Justice Jackson argued in his concurring opinion that it made no
difference whether Adams was a volunteer or not, that the Act did not
require him to claim the privilege in any event.' This argument was held
unavailing in May v. United States' and the witness in that case, who
6136 Stat. 352 Ch. 216 (1910).
62 52 Stat. 942 (1938), 18 U.S.C. § 3486 (Supp. v, 1952).
6347 U.S. 179 (1954).
"Created by Sen. Res. 202, 81st Cong., 2d Sess. (1950).
"Adams v. State. 202 Md. 455. 97 A.2d 281 (1953).
This section provides: "Refusal of Fitness to testify. Every person who having
summoned as a witness by the authority of either House of Congress, to &ive testimony
produce papers upon any matter under inquiry before... any committee of either house...
to answer any question pertinent to the question under inquiry,
having appeared, refuses
be deemed guilty of a misdemeanor..."
"347 U.S. at 181-182.
"142 U.S. 547 (1892).
0347 U.S. at 182.
70Id. at 183.
5 175 F. 2d 994 (D.C. Cir. 1949).
been
or to
who
shall
appeared without compulsion, was denied the protection of the immunity
statute.
Other Federal immunity statutes have had better luck in the courts. The
first of these was the section of the Act relating to proceedings before
the Interstate Commerce Commission, known as the Compulsory Testimony Act of February 11, 1893." It was challenged immediately and was
before the Supreme Court in 1896 in the case of Brown v. Walker." The
Court found that the Act granted the complete immunity necessary to
make it coextensive with the privilege, and, as a further pronouncement
said:
"It is entirely true that the statute does not purport, nor is it
possible for any statute, to shield the witness from personal disgrace
or approbrium attaching to the exposure of his crime ...A person
who commits a criminal act is bound to contemplate the consequences
of exposure to his good name and reputation, and ought not to call
upon the courts to protect that which he himself esteems to be of
such little value...."'
This effectively disposed of the question of the personal effect of compelled testimony on the witness so long as there is no danger of criminal
sanctions.
Since the enactment of the Compulsory Testimony Act in 1893, practically all major regulatory acts and wartime measures have had it written
into them."5 This, of course, means that, in the case of an individual called
to give testimony before any of these regulatory agencies, an invocation of
the privilege, met by an offer of immunity, makes the witness compellable
to answer." In the case of grand juries and congressional committees,
however, until August 20, 1954, there was not on the statute books any
act which granted immunity coextensive with the privilege, and, therefore
of sufficient scope to make a witness compellable to answer. Adams v.
Maryand only stands for the proposition that where a witness is subpoenaed to appear before a congressional committee, and does appear, any
testimony given may not, per se, be used to convict him of a state or
federal crime.
On August 20, 1954, however, the President signed into law an amendment to Title 18, Section 3486 of the United States Code."' This amendment replaced the old section which applied to congressional hearings with
a new one covering not only those hearings but, also grand jury and
court proceedings. The immunity to be granted there is, however, confined to,
-. any investigation relating to any interference with or endangering of, or any plans or attempts to interfere with or endanger the
T227 Stat. 443 (1893), 49 U.S.C. 146 (1946).
U 161 U.S. 591 (1896).
7 "Id. at 605.
isSee for a listing of these statutes, Shapiro v. United States, 335 U.S. 1, 6-7, footnote 4
(1947).
Isin United States v. Mnnia et al., 317 U.S. 424 (1943), however, it was held that the
witness who answered a subpoena to testify before a grand jury in regard to alleged violations
of the Sherman Anti-Trust Act had an automatic immunity under 34 Stat. 798, 15 U.S.C. § 33,
the F.T.C. rovision making the Compulsory Testimony Act applicable.
1347 US.179 (1954).
79Pub. L. No. 600, 83rd Cong., 2d Sess. (Aug. 20 1954).
19]
national security or defense of the United States by treason, sabotage, espionage, sedition, seditious conspiracy or the overthrow of its
Government by force or violence..."*
as far as Congress is concerned, and to the same orbit as far as grand
juries and courts are concerned, except for cases arising under certain
specific provisions of the United States Code.
Certain safeguards have been written into this new immunity statute
as a result of the unfortunate experiences with some of its forerunners.
First, a majority of either house of Congress or two thirds of any 'full
committee must have authorized the granting of immunity to a witness.
Second, the Attorney General must be notified of the proposed grant.
Third, an order must be entered 'by the United States District Court having
jurisdiction, requiring the witness to testify or produce the desired records.
In the case of grand juries and courts, the United States Attorney who
has the case may, with the approval of the Attorney General, grant the
immunity and compel the testimony or production of records.
The language of the statute, as regards the extent of the immunity
granted, follows the Compulsory Testimony Act' and appears to grant
an immunity coextensive with the privilege. It seems to meet the requirements of the Supreme Court as expressed in the following quotation from
Brown v. Walker:'
"The act [Compulsory Testimony Act of February 11, 18931 in
question contains no sugestion that it is to be applied only in Federal
Courts. It declares broadly that 'no person shall be excused from
attending and testifying... on the ground... that the testimony...
may tend to criminate him... But no person shall be prosecuted or
subject to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify...' It is
not that he shall not 'be prosecuted for or on account of any crime
concerning which he may testify, which might possibly be urged to
apply only to crimes under Federal law...but the immunity extends to any transaction, matter or thing concerning which he may
testify, which dearly indicates that the immunity is intended to be
general and to be applicable whenever and in whatever court such
prosecution may be had.""
V. An Analysis
In reviewing the historical development of the privilege as a common
law rule, it is quite apparent that today's interpretations go much further
than its original exponents intended. However, it must be reported that
as early as the middle of the eighteenth century it was stated that,
... it is a. general rule, That a witness shall not be asked any
question the answering to which obliges him to accuse himself of a
crime; and that his credit is to be impeached only by general account
of his character and reputation, and not by proof of particular crimes,
whereof he never was convicted.""
1*Id. 9 (a).
1927
"161
Stat. 443 (1893). 49 U.S.C.
U.S. 591 (1896).
146 (1946).
1Id. at 607.
"2 Hawkins. Pleas Of The Crown 609 (6th ed. 1777).
[10
This general rule is followed today verbatim, despite the limitation placed
on it by the inclusion of the term 'in any criminal case in the Fifth
Amendment. Throughout our constitutional development the definitions
of the words of the Fifth Amendment have shown a fear of a return to
an inquisitorial form of justice rather than our present accusatorial form.
"Criminal case" has been expanded to include not only actual trials and
truly criminal proceedings but also congressional" and administrative
hearings."
The Supreme Court has said that the term "criminal case" in the Fifth
Amendment is broader than the term "criminal prosecution" in the
Sixth Amendment." This is no doubt true but does it mean that any
hearing, regardless of its ultimate purpose or its actual scope, may be
considered a "criminal case" if a witness' testimony might tend to incriminate him? This is apparently true, because today, as stated above,
any congressional or administrative hearing is fair ground for invocation
of the privilege." This, therefore, can mean but one thing, that the words
of the Fifth Amendment are today read as they were originally proposed
in the First Congress in 1789, i.e. "No person... shall be compelled to
be a witness against himself..."
There have been many critics of the privilege and its expansion both
before and after its inclusion in our Constitution." And, it is submitted,
a clearer understanding of the arguments for abolition or restriction is
facilitated if we keep constantly in mind the real character of the original
common law concept; remembering that it was a procedural rule of
evidence and not a fundamental right of national or state citizenship."
Mr. Jeremy Bentham's arguments against the privilege would seem to
carry the greatest weight, since, as a matter of historical record, every
rule of evidence which he attacked, except the privilege, was subsequently
changed." He advanced, inrer alia, the following reasons for retention of
the privilege arguing that none of them was valid.
"The old woman's reason. The essence of this reason is contained
in the word 'hard', 'tis hard upon a man to be obliged to criminate
himself.... That he should not much like to what is meant by his
criminating himself, is natural enough; for what this leads to is his
punishment....
e"The fox hunter'; reason. This consists in introducing upon the
carpet of legal procedure the idea of 'fairness' in the sense in which
the word is used by sportsmen. The fox is to have a fair chance for
"Sipra note 28.
4Brown v. Walker, 161 U.S. 591 (1896)
"*Counselman v. Hitchcock, 142 U.S. 547, 563 (1892); United States v. Zucker, 161 U.S.
475, 482 (1896).
" Supra notes 28 & 85.
'~Supra note 14.
"Bentham, Rationale Of Judicial Evidence, b IX, pt. IV, c. III (Bowrings ed., vol VII,
S. 452 ff.); Appleton, Evidence, c. vii, pp. 129-134, c. xv, p. 246 (1860); Rapacz, Limiting
he Plea Of Sel.Incrimtnation And Recent Enlargement Of The New York Immunity Statutes,
20 Geo. L. J. 329 (1932); Terry, Constiturtional Provisions Against Forcing Self-Incrimination,
15 Yale L. J. 127 (1906); Mr. Denman's Comments, 40 Edinb. Rev. 190 (1824). Mr. Chief
Justice Cardozo also regarded the privilege as something less than a fundamental right and
felt that its disappearance would cause no great harm. See Palko v. Connecticut, 302 U.S.
319. 325 (1937).
"Twining v. New Jersey, 211 U.S. 78 (1908).
*8 Wigmore, op. ct. supra note 3 1 2251.
[111
his life: he must have (so dose is the analogy) what is called 'law'leave to run a certain length of way for the express purpose of
giving him a chance to escape....
"t Confounding interrogation with torture; with the application of
physical suffering, till some act is done,-in the present instance, till
testimony is given to a particular effect required....
"Reference to unpopular institutions. [The Star Chamber did it,
therefore it is bad.]r
While Bentham had reference to the common law privilege in England,
one of his disciples in this country, Chief Justice Appleton of the Supreme
Court of Maine, argued strongly against the privilege as it was constituted here.'
In rejecting Bentham's arguments, so far as they were applicable to
the ordinary witness, Wigmore said:
" .. The witness stand is to-day sufficiently a place of annoyance
and dread. The reluctance to enter it must not be increased. Every
influence which tends to suppress the source of truth must be removed.... Moreover, no serious loss to justice can be incurred by
recognizing the privilege. If the witness' testimony is indispensable,
and the incriminating fact is vital to the cause, a pardon, executive
or statutory, can for the particular instance remove the privilege.""
Here, with Wigmore's reference to the granting of immunity, the two
authors reach the same result by different methods. The effect is the
same but under Bentham's method it would be argued that a removal of
the protection of the privilege would lead to abuses by investigative
authorities, such as occurred during the days of the Star Ch-amber, and that
innocent people would suffer. This argument has been answered by one
author in the following way:
"Of course, we will expect to hear the old argument that to limit
the plea is an encroachment ,upon one of the most fundamental
rights written into the Constitution and that it is necessary to the
protection of the innocent. But in our open courts today there is little
danger of any abuse of the innocent and all the guilty are entitled
to is justice.... It might also be questioned whether the plea of selfincrimination was ever intended to have such a prominent place in our
constitutional law. In Twining v. New Jersey [211 U.S. 78 (1908)]
the Supreme Court ...held that it was not a privilege of national
citizenship guaranteed by the due process clause of the Fourteenth
Amendment against abridgement by the states.""
Admittedly these arguments for the abolition of the privilege or removal
of it from the Constitution are purely academic. The possibility of such
action is too remote to be considered, but this does not preclude the
courts from restricting the rule by judicial interpretation. Of course, the
enactment of immunity statutes accomplishes the same purpose as abolition or judicial restriction, but consummate care must be exercised in
91Bentham,
op. cit.
supra note 88.
9 Appleton, op. cit. supra note 88.
3z
8 Wigmore, op. cit. supra note 3,
DRapacz, supra note 88, at 552.
5 2251.
[12)
granting immunity in order that law enforcement agencies will not be
hampered in their operations, or that some of the guilty be allowed to
take unwarranted "immunity baths"."
Aside from these considerations, what is the value of the rule today?
Sans any immunity statutes, what is the status, both legal and lay, of a
witness who invokes the privilege? As a rule of law it can be said that
he may not be made to incriminate himself before any investigative
body." But is this really any protection to him? Concededly it is in a
criminal trial where the prosecutor may not, in the absence of statute,
comment on the defendant's failure to testify,' but in a public hearing
before a congressional committee or an administrative agency its value
is extremely doubtful.
It has been consistently held that while a man has a constitutional right
to refuse to testify he has no right, if he does refuse, to retain a position
of public trust." Aside from this the public censure of a witness who
invokes the privilege in this era of the highly publicized congressional
investigation places him on the horns of a dilemma. To invoke the
privilege invites public disfavor and to testify truthfully invites, at the
least, doubt as to his fitness for office or loyalty, and, at the most, criminal prosecution. To testify falsely, of course, will generally lead to
prosecution for perjury. It must be constantly bourne in mind that a
witness called to testify in a congressional hearing is usually one against
whom some derogatory information has been garnered, and he is therefore placed on the defensive immediately.
Thus, it would appear that any invocation of the privilege has its vices
as well as its virtues, and when we add to the considerations just mentioned the fact that a witness must exercise the wisdom of a Solomon
concering the moment at which he will invoke the privilege-knowing
full well that a premature invocation will lead to prosecution for contempt, while a tardy invocation will lead to waiver-his position is
indeed untenable."
Bearing these things in mind, the question arises as to the grounds
upon which an innocent man, a man who has committed no criminal act,
may justify an invocation of the privilege. Remember that the origin of the
privilege is rooted in the agitation which led to abolition of the Courts of
Star Chamber, where many innocent persons were put upon their oath to
swear their guilt.' But, such procedure is not admitted to be possible
today in any civilized community, yet the privilege is still held to be
" For excellent
discussion of the history of immunity statutes and their effect see:
Address By Honorable Herbert Brownell, Jr., Attorney General of the United States, Immunity
From Prosecution Versus Privilege Against Self-Incrimination, Justice Department, 1953; ComAgainst Self-Incrtmination Versus Immunity: Proposed Statutes, 41 Geo. L.
ment. The Privilege
J. 511 (1953).
"Sura notes 28 & 84.
A anson v. People of California, 332 U.S. 46 (1947) (a 5-4 decision in which a
California constitutional provision, Art. 1 5 13, and a statute, Penal Code of California
1 1323, which allowed comment on a defendant's refusal to take the stand, were held good
and not violative of the Fourteenth Amendment).
"Orloff v. Willoughby, 345 U.S. 83 (1953); Christal v. Police Commissioner of San
Francisco, 33 Cal. App.2d 564, 92 P.2d 416 (1939); McAuliffe v. Mayor, City of New Bedford,
155 Mass. 216 29 N.E. 517 (1892); Note, Mandatory Dismissal Of Public Personnel And
The Privilege Against Self Incrimination, 101 U. of Pa. L. Rev. 1190 (1953); Exec. Order No.
10450, 19 Fed. Reg. 2489 (1953); Exec. Order No. 10491, 18 Fed. Reg. 6583 (1953).
"t
1 Supra note 52.
1 Supra Note 3.
[13J
justifiably retained as a protection for the innocent.' °1 It is submitted,
therefore, that the only justification for this assertion must lie in the fear
of conviction ,of innocent persons by perjured testimony or circumstantial
evidence. If this is not so, then it is difficult to see under what circumstances an innocent person may invoke the privilege.
It is clear that retention of the privilege has a deterrent effect on the
law enforcement agencies of the state, and this is, of course, a protection
to the innocent, but, it is a sad commentary on the esteem in which we hold
our law enforcement agencies. This apparent distrust is nationwide, only
two states not having any provision -forthe privilege in their constitutions.
Even so, in those states the privilege is a well settled common law rule,
extensive as any constitutional guarantee in any other state.'"
However, we continue to hear the age old argument that the privilege
is a protection to the innocent and must be retained. Its evils-primarily
its protection of the guilty-are seldom stressed. Wigmore, however, in
arguing for retention of the privilege, did recognize and abhor them, saying:
"In preserving the privilege, however, we must resolve not to give
it more than its due significance. We are to respect it rationally for
its merits, not worship it blindly as a fetish. We are not merely to
emphasize its benefits, but also to concede its shortcomings and guard
against its abuses. Indirectly and ultimately it works for good,for the good of the innocent accused and of the community at
large. But directly and concretely it works for ill,-for the protection of the guilty and the consequent derangement of civic order.
The current judicial habit is to ignore its latter aspect, and to laud
it undiscriminatingly with false cant... There is no reason why
judges should lend themselves to confirming the insidious impression
that crime in itself is worthy of protection. The privilege cannot
be enforced without protecting crime; but that is a necessary evil
inseparable from it, and not a reason for its10 existence. We should
regret the evil, not magnify it by approval." '
In these circumstances it would appear that we have on our hands a
two headed monster. A rule of law which is on the one hand a protection
for the guilty, and on the other an engine of social destruction for the
innocent witness who invokes it.
VI. Conclusion
What then may we conclude concerning the privilege against selfincrimination and its vaunted protection of the innocent witness?
First, we must recognize that any present attempts to abolish the
privilege by removing it from the (Constitution are definitely impossible.
'0'
10 2
(1908).
8Wigmore, op. cit. supra note 5 9 2251.
The states are Iowa and New Jersey. See Twining v. New Jersey, 211 U.S. 78, 91
101
8 Wigmore, op. cit. supra note 3, § 2251.
[ 14]
The roots of the privilege run too deep in our democratic soil to be
summarily cut out in the forseeable future. Thus, it may -be stated with
complete assurance that the privilege will remain a part of our constitutional heritage for many years to come.
Second, in light of the current judicial trend, continued expansion
rather than contraction is to be expected. The doctrine of stare decisis will
not be easily upset. While the courts will continue to reiterate that the
privilege is not a fundamental right of National citizenship, they will
continue to grant relief as though it is. They will continue to broadly
define the words of the Fifth Amendment and to apply them to situations they were not originally intended to cover. They will continue to
make the privilege a substantive right rather than a procedural rule of
evidence. Here again, it may be stated with some assurance, there is little
possibility of any reversal of this trend at present.'
Third, from the witness' standpoint, the privilege has become an
enigma. To claim it is to invite scathing public denunciation and social
ostracism; while to testify candidly is to invite conviction by circumstance
or perjury. The concept of protection for the innocent can, therefore,
only be said to validly apply in actual criminal trials; unless, of course,
we subscribe to the theory that it has a value as a deterrent to inquisitional processes of investigation. It must be remembered, however, that
this value can only be realized in cases of attempted accusation of innocent
persons of crimes. It is submitted, however, that the rules of due process
and equal protection appear to provide adequate safeguards in this area.
Fourth, immunity statutes, if coextensive with the privilege, can
effectively remove it as a shield, but, it is submitted, they have proved
excellent fountains at which the guilty may wash away their sins. This,
of course, is only the natural consequence of such enactments, for they
can only be justified on the ground that some guilty person holds vital
information for which the interested tribunal is willing to pay a price.
Blackmail in its rawest form. Of course, we will continue to hear that
age old cry that it is better that a few guilty escape their just punishment
than for one innocent witness to suffer. But, in view of the current
moral and legal sanctions which can be, and are, applied against a witness who claims the privilege, it is very difficult to see how it remains a
protection to the innocent. If the witness is innocent, invokes the privilege, is granted immunity and then testifies, and his testimony does not
reveal a crime, he is guilty of contempt. He had no right to invoke the
privilege.
204It has been stated recently that there has been a narrowing of the privilege by the
Pplieation of an external objective test of incrimination. Huard, The Fifth Amendment-An
valmltion, 42 Geo. L. J. 345 (1954). The writer advocates a return to the subjective test,
where the court takes no part in the determination of whether a question if answered directly
would incriminate. The following cases are cited as taking this view, but none of them has
been approved by the Supreme Court: United States v. Rosen, 174 F.2d 187 (2d Cir. 1949)
cfrt.
aeed, 58 U.S. 851 (1949); Alexander v. United States, 181 F.2d 480 (9th Cir. 1950),
Daran v. United States, 181 F.2d 489 (9th Cir. 1950); Kasmorvitz v. United States, 181 F.2d
632 (9th Cir. 1950). Healey v. United States, 181 F.2d 164 (9th Cir. 1950). If the view of
the author was followed the witness would be the sole judge of whether a direct answer would
incriminate him and could, with impunity, refuse to answer any question no matter how
innocuous.
Thus, it would seem that we have reached a point from which we cannot easily retreat. A point from which it is virtually impossible to retreat by constitutional amendment. A point from which the courts will
find it difficult to retreat by judicial contraction. A point at which we
find it necessary to honor the privilege by the breaches of immunity
statutes, since this seems the only way to enforce that fundamental right
which "the public has to every man's evidence".' We can only hope that
those charged with the duty of granting immunity will exercise the most
consummate discretion to the end that the abuses of the past do not
again emerge.
UOSMPra note 55.
[ 16 J