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VOLUME 1951
NUMBER 4
JULY
WISCONSIN
LAW REVIEW
• THE SUPPORT CONTRACT
AUGUST G. ECKHARDT
• FEDERAL AND STATE POWERS UNDER THE UN COVENANT
ON HUMAN RIGHTs-PART II
ZECHARIAH CHAFEE, JR.
COMMENTS
• ANTI-TRUST LAW IN WISCONSIN
• THE ELIMINATION OF NONCONFORMING USES
• COMMUNIST REGISTRATION UNDER THE McCARRAN ACT
AND SELF-INCRIMINATION
704 WISCONSIN LAW REVIEW [Vol. 1951
COMMUNIST REGISTRATION UNDER THE McCARRAN
ACT AND SELF-INCRIMINATION
The Internal Security Act of 19501 (the McCarran Law) requires
“Communist-action organizations”2 to register with the Attorney
GeneraP If the Attorney General decides that an organization
declining to register voluntarily is a “Communist-action organization,”
he is entitled to petition the Subversive Activities Control
Board for an order requiring registration.’
Pursuant to this provision, the Attorney General petitioned the
Board to compel the registration of the Communist Party. If the
order is granted and the Party refuses to comply,6 the members
individually will be required to register.8
Does this registration requirement conflict with the constitutional
requirement that “No person … shall be compelled in any criminal
case to be a ‘vitness against himself … “?7 To answer this, it will be
necessary to explore three subsidiary questions:
1) Is the admission that one is a Communist incriminating and
therefore privileged under the Fifth Amendment?8
2) Does the constitutional privilege against compulsory selfincrimination
extend to registration proceedings, such as are conducted
under the McCarran Act?
3) Is the privilege nullified by force of the “immunity” provisions
of the McCarran Act?9
1 Pub. L. No. 831, 81st Cong., 2d Sess. (Sept. 23, 1950) (Internal Security Act
of 1950).
2 Id. at§ 3(3).
a I d. at§ 7(a).
4 Id. at § 13(a).
6 For a statement of intention not to comply by the chairman of the Communist
Party see Hearings before Committee on the Judiciary on H.R. 586!, 80th Cong.,
2d Sess. 120 {1948).
s Pub. L. No. 831, 81st Cong., 2d Sess. § 8(a) (Sept. 23, 1950) (Internal Security
Act of 1950}.
7 U.S. CoNsT. AMEND. V.
8 In several cases witnesses claimed that the First Amendment gave them the
privilege to refuse to answer such questions. This defense has been uniformly
rejected. Lawson v. United States, 176 F.2d 49, 51-52 (D.C. Cir. 1949), cert.
denied, 339 U.S. 934 (1950); Eisler v. United States, 170 F.2d 273, 279 (D.C. Cir.
1948), cert. dismissed, 338 U.S. 883 (1949}; Barsky v. United States, 167 F.2d
241, 244-250 (D.C. Cir. 1948), cert. denied, 334 U.S. 843 (1948), rehearing denied,
339 U.S. 971 {1950}; United States v. Josephson, 165 F.2d 82, 90-92 (2d Cir.
1947), cert. denied, 333 U.S. 838 (1948).
‘Pub. L. No. 831, 8lst Cong., 2d Sess. § 4(f) (Sept. 23, 1950} (Internal Security
Act of 1950).
.
“
July] COMMENTS
Is THE ADMISSION THAT ONE IS A CoMMUNIST INCRIMINATING
AND THEREFORE PRIVILEGED?
(1) Under the Smith Act.
705
In Blau v. United States, 10 the Supreme Court unanimously decided
this question in the affirmative.
The appellant had been convicted of contempt for refusing to
answer questions before a grand jury regarding her membership in
the Communist Party and her knowledge of its affairs. Her refusal
was based on the fact that twelve Communist leaders had been indicted
under the Smith Act11 and that the Attorney General [Clark]
had formally declared the Communist Party to be a “subversive”
organization.12 The lower court acknowledged that an “uncertainty
and confusion” shrouded the status of the Party, but concluded that
“membership in the Party is not of itself an offense”13 and that the
appellant was therefore wrong in claiming that testimony regarding
membership in the Communist Party would tend to incriminate
her.14 The trial court apparently assumed that the wjtness must
conclusively prove the illegality of the act in question before she might
refuse to answer.
That some limitation, other than the witness‘ claim, must circumscribe
the availability of the privilege is obvious; otherwise
no testimony would ever be compellable. The witness, either in bad
faith or in response to a purely imagined danger, could assert the
privilege in reply to any conceivable question put to him, regardless
of how innocent the testimony sought might actually be.
The courts, accordingly, do not accept as conclusive the witness’s
statement that his testimony will tend to incriminate him. They
must see from the facts of the case and the nature of the question
propounded, that there is a reasonable ground for the witness to
10 340 u.s. 159 (1950).
11 54 STAT. 671, §§ 2, 3 (1940), as revised 18 U.S.C. § 2385 (SI!PP· 1950). Conviction
sustained: United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff’d,
341 u.s. 494 (1951).
12 5 CoDE FED. REos. (app. A) p. 205 (1949), under President Truman‘s Loyalty
Program, 3 CoDE FED. REos., p. 129 (Supp. 1947).
The Attorney General’s failure to prov1de notice and hearing for organizations
listed as “subversive” was described as “administrative discretion run riot” and
“patently arbitrary” by the Supreme Court in Joint Anti-Fascist Refugee Committee
v. McGrath, 341 U.S. 123 (1951). The Court there reversed a federal district
court’s dismissal of complaints filed by 3 organizations to test the Attorney
General’s authority to list them as “subversive” under the Loyalty Program.
u Blau v. United States, 180 F.2d 103, 104-105 (lOth Cir. 1950).
‘ 4 The court relied for this conclusion on the holdings in Schneiderman v.
United States, 320 U.S. 118 (1943) and Dunne v. United States, 138 F.2d 137
(8th Cir. 1943). This reasoning is criticized in Alexander v. United States, 181
F.2d 480, 483 (9th Cir. 1950).
706 WISCONSIN LAW REVIEW [Vol. 1951
apprehend danger if he is compelled to testify. As laid down in the
Rogers v. United States,15 the rule is this:
… the witness is not the sole judge as to whether his answer
will tend to incriminate him; … when the question arises, it is
for the court to determine from all the facts whether the question
is of such a nature as might reasonably be expected to incriminate
the witness, depending on the answer thereto. If there is reason
to believe that the answer might tend to incriminate the witness,
he cannot be compelled to answer . . .
The crux of the problem is this: it is sometimes far from obvious
whether the testimony required actually tends to incriminate. Frequently
that determination depends on a detailed knowledge of t he
witness’s circumstances which are unknown to the court. In order to
answer whether the testimony in question tends to incriminate, it
may become necessary to show how it incriminates. But if a question
on its face seems t otally innocent, is the witness required to disclose
all the conditions which make the fact incriminating? Is he required
to list the essential facts of the crime, unsusp~cted by the court,
which justify the claim of privilege? Clearly not. He would then be
disclosing the very facts which the privilege is intended to protect.16
But cin the other hand, the witness is not the sole judge of whether
his answer will tend to incriminate him.
A witness may thus be required to show that certain testimony is
likely to be incriminating,17 but he may be compelled to show no
more than such a likelihood. “Logically, indeed, he is boxed in a
paradox, for he must prove the criminating character of what it is
his privilege to suppress just because it is criminatory. The only
practicable solution is to be content with the doors being set a litt le
ajar.”18
16 Rogers v. United States, 179 F.2d 559, 562 (lOth Cir. 1950), aff’d, 340 U.S.
367 (1951). See also 8 WIGMORE, EviDENCE§ 2271.
15 Rogers v. United States, 179 F.2d 559, 562 (lOth Cir. 1950), aff’d, 340 U.S.
367 (1951); United Sta~s. v. Weisman).111 F.2d 260, 262 (2d Cir. 1940); United
States v. Burr (In re Willie), 25 Fed. vas., No. 14,692e, at 40 (C.C.D. Va. 1807);
8 WIGMORE, EVIDENCE § 2271.
17 United States v. Zwillman1 108 F.2d 802 (2d Cir. 1940) . The court held
that in refusing to answer questiOns regarding the identity of associates in certain
years, the witness should have been allowed to introduce evidence that he t:night
reasonably anticipate prosecution for conspiracy to violate the liquor revenue
law. The contempt conviction was reversed. In United States v. Weisman, 111
F.2d 260 (2d Cu. 1940), a witness was asked whether he knew anyone who
lived in Shanghai in thtl years 1934 to 1939 or received cablegrams at a certain
place. Here the questions were on their face innocent. The witness showed a
pending indictment against other parties for conspiracy to import narcotics
based in part on facts similar to those being solicited from the witness. He was
held entitled to claim the privilege.
18 United States v. Weisman, 111 F.2d 260, 262 (2d Cir. 1940); see summary
of general rule in Rogers v. United States, 179 F.2d 559, 562 (lOth Cir. 1950),
ajJ’d, 340 U.S. 367 (1951). Witnesses here were compelled to testify but on the
July] COMMENTS 707
Apparently following this analysis, the Supreme Court reversed
the ruling of the lower court in the Blau case. They held in effect:
(1) It is not incumbent on the witness to prove the applicability of the
Smith Act to the Communist Party. It is sufficient that “future
prosecution of petitioner [is] far more than a ‘mere imaginary possibility’
” and that “she reasonably could fear that criminal charges
might be brought against her if she admitted employment by the
Communist Party or intimate knowledge of its workings.”19 (2) Nor
must she prove that the desired testimony would be sufficient in
itself to convict her.
Whether such admissions by themselves would support a conviction
under a criminal statute is immaterial. Answers to these
questions .. . would have furnished a link in the chain of evidence
needed in a prosecution of petitioner for violation of . . . the
Smith Act.20
This position was anticipated in three cases decided in the ninth
circuit.21 Witnesses before several grand juries refused to answer
ground that they had waived the privilege by earlier admissions of membership
in the Communist Party. For a second case where the privilege was held waived,
see note 63 infra.
Why couldn‘t tllis “paradox” be resolved by (1) demanding that the witness
prove his right to the privilege; and (2) in return, extending a guarantee of nonprosecution
(immunity) for any incriminatory testimony disclosed in such
proof? Suppose t his were done by an appropriate immunity statute (see page
714, infra). The court would then no longer be content with the door being a
“little ajar“: the witness would have to prove his right to stand mute. But in so
doing he might refer to other facts which would be clearly incriminatory and
thus gain the benefits of the immunity statute. The prosecutor at this J?Oint would
have the satisfaction of knowing precisely why the privilege was onginally demanded,
but he could no longer prosecute for the crime.
This argument of course assumes that the trial of the witness would be the
immediate or future purpose of the enquiry. If this were not the case, as for
example, where the accumulation of facts was to serve as a basis for the prosecution
of others or the drawing up of legislation, the power to prosecute might
sometimes be profitably sacrificed in the interest of having complete access to
facts possessed by the witness.
1g Blau v. United States, 340 U.S. 159, 161 (1950).
20 Ibid. The Smith Act, 54 STAT. 6711 § 2(a)(3) (1940), as revised, 18 U.S. C.
§2385 (Supp. 1950), declares it unlawfUl for any person:
to organize … any group .. . [to) teach\ advocate, or encourage the overthrow
or destruction of any government in tne United States by force or violence;
or to be or become a member of … any such group, … knowing the purposes
thereof.
The crime defined in the Smith Act therefore consists of three ” links”: (1) to
organize or be a member of a group (2) knowing (3) that it teaches or advocates
the violent overthrow of the government. Admitting membership in the Party
is an admission of the first link. The third link is supplied by the Court’s sustaining
the conclusion in the trial of 11 Communist leaders that “the general goal of the
Party was … to achieve a successful overthrow of the existing order by force
and violence.” Dennis v. United States, 341 U.S. 494, 498 (1951).
21 Kasinowitz v. United States, 181 F.2d 632 (9th Cir. 1950), cert. denied, 340
U.S. 920 (1951) ; Doran v. United States, 181 F.2d 489 (9th Cir. 1950); Alexander
v. United States, 173 F.2d 867 (9th Cir. 1949), rehearing, 181 F.2d 480 (9th Cir.
1950).
708 WISCONSIN LAW REVIEW [Vol. 1951
questions dealing mth membership in the Communist Party on the
ground that their replies would tend to incriminate them.
In Alexander v. United States,22 for example, their refusal was based
in part on these allegations whlch they offered to prove:23
(1) The general indictment brought against the twelve Communist
leaders in the Southern district of New York charged them “with
conspiring to violate the Smith Act solely by virtue of their alleged
activity informing the Communist Party.” 24
(2) The individual indictment.a charged each “With violations of the
Smith Act solely by virtue of his alleged membership in the Communist
Party.”25
(3) There had been an administrative finding by the Attorney General
under President Truman’s Loyalty Order that the Communist
Party advocates the forcible overthrow of the government.26
(4) Communists had been deported on the same theory.27
(5) The announced policy of the Attorney General was that membership
in the Communist Party constitutes a violation of t he Smith
Act.
The lower court rejected the attempted offer of proof on these
points as irrelevant and convicted the witnesses for contempt for
refusing to answer the questions.
In reversing the convictions, the court of appeals observed that
“Nothing could be more likely to create apprehension of prosecution
for violation of the Smith Act than the matters so offered in proo£.”28
The common rationale of these cases is quite clear: It is “palpably
inconsistent,” on the one hand, to convict Communists for organizing
u 181 F.2d 480 (9th Cir. 1950).
sa I d. at 484.
u The indictment charged: ” .. . the defendants .. . knowingly did conspire
… to organize as the Communist Party of the United States a society, group,
and assembly of persons who teach and advocate the overthrow and destruction
of the Government of the United States by force and violence … ” N. Y. Times,
July 21, 1948, p. 1, col. 8.
25 The indictment charged: ” … the defendant herein has been a member of
said Communist party of the United States of America … “while knowin~ that
it taught and advocated violent overthrow of the government. N. Y. ‘limes,
July 21, 1948, p. 3, col. 1.
H See note 12 supra.
27 Pursuant to 8 U.S.C. § 137(e)(g) (1946) which provides for deportation of
aliens who are affiliated with groups which advocate violent overthrow of the
government. See grand jury investigation referred to in Estes v. Potter, 183 F.2d
865 (5th Cir. 1950), cert. denied, 340 U.S. 920 (1951).
18 See note 23 supra. The right of witnesses to claim the privilege before administrative
bodies has also been upheld. In Estes v. Potter, 183 F.2d 865 (5th
Cir. 1950), cert. denied, 340 U.S. 920 (1951), the witness was held entitled to
remain silent in response to questions which might circumstantialJy link him to
the Communist Party. The appellant’s claim of privilege resting on fear of
prosecution under the Smith Act was found reasonable.
‘
July] COMMENTS 709
and belonging to the Communist Party;29 to attempt to deport them;88
to declare in administrative proceedings that the Party’s aims are
illegal3l_all on the theory that the Party is dedicated to the violent
overthrow of the government-and on the other hand, to maintain
that it is unreasonable for a witness to fear prosecution under the
Smith Act if he testifies that he is a Communist.
This being the case, “the Constitution gives a witness the privilege
of remaining silent.”32
These decisions were all rendered before the Supreme Court had
passed on the constitutionality of the Smith Act. In United States v.
Dennis,82• the Court affirmed the constitutionality of the Act as
applied to 11 Communist leaders. The Attorney General subsequently
indicated his readiness and intention to prosecute Communists
in great number on the basis of this decision. If the threat
of prosecution to those testifying as to Communist Party affiliation
was considerable in 1949 and 1950, it has increased many fold since
the Dennis decision.
(2) Under the McCarran Act.
The Smith Act aside, does any other basis exist to warrant claim
of the privilege by one asked to “testify” as to his connection with the
Communist Party by registration with the Subversive Activities
Control Board?
Such a basis, it is believed, is to be found in Section 4(a) of the McCarran
Act. This section declares it a crime for persons (I) “knowingly”
(2) “to combine” (3) “to perform any act which would substantially
contribute to the establishment within the United States”
of a foreign-dominated dictatorship.
But Section 3 of the Act defines a “Communist-action organization”
(i.e. one required to register) as one “substantially” under the control
and serving the interests of the foreign-dominated world Communist
movement declared to exist in the preamble. Suppose therefore, that
an individual complied ·with an order to register. He would thereby
be conceding his membership in an organization “substantially”
under the cont rol and serving the interests of the world Communist
movement. “Such an admission,” said (then) Attorney General
Tom Clark, “may render . .. [him] . .. immediately liable to the
n United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff’d, 341 U.S. 494
(1951).
ao See note 27 supra.
” See note 12 supra.
n See note 19 supra.
Ita 341 U.S. 494 (1951).
710 WISCONSIN LAW REVIEW [Vol. 1951
penalties of Section 4,”31 since Section 4(a) declares the criminality
of any act which ((substantially” contributes to the establishment,
within the United States of a foreign-dominated dictatorship.
For a person to admit membership in the Communist Party would
be, at very least, a long step in the direction of admitting the second
and third elements of the crime defined in Section 4(a).34
It therefore appears that a person testifying by registration that
he is a member of a “Communist-action organization” could quite
reasonably fear prosecution based solely on the McCarran Act.
DoEs THE C oNSTITUTIONAL PRIVILEGE AGAINST CoMPULSORY
SELF–INCRIMINATION EXTEND TO REGISTRATION PROCEEDINGS
SucH AS ARE CoNDUCTED UNDER THE McCARRAN AcT?
Although the Fifth Amendment literally extends the protection
against compulsory self–incrimination only to witnesses in criminal
cases, the privilege as judicially developed is equally applicable in
all manner of proceedings where testimony is compelled under legal
sanction.35 The criterion generally governing the availability of the
privilege is the tendency of the disclosure to incriminate the witness.
Thus the courts have held that the privilege may be invoked in
criminal or civil proceedings;36 whether the witness is a party or not;
11 Hearings before Committee on the Judiciary on H.R. 68613, 80th Cong., 2d
Sess. 423 (1948).
34 In Professor Chafee’s words:
… section 4a probably overlaps the definition of a “Communist political
organization” in section 3(3). The language is different but the substantial
elements of the two passages in the bill are much the same. Therefore, it
seems very p,ossible that any active participant in a “Communist political
organization ‘ is guilty of the vague crime which is punishable under section
4. In other words, the registration provisions virtually compel them to confess
their own guilt of aiding to establish a totalitarian dictatorship. Thus,
besides impairing the policy of freedom of speech under the first amendment,
the bill cuts into the privilege against self-incri.mination under the fifth
amendment.
Hearings before Subcommittee of the CommiUee on the J udiciary on S. 1194- and
S. 1196, 81st Cong., 1st Sess. 248 (1949). This comment was made with reference
to the Mundt-Johnson Bill, S. 1194 81st Cong., 1st Sess. (1949), and the Ferguson
Bill, S. 1196, 8lst Cong., 1st Sess. (1949). The pertinent sections of these
bills are found, however, substantially unchanged in the McCarran Act, with
this exception: the provisions of Section 4(f) of the McCarran Act are absent
in any of the Act’s forerunners. The efficacy of Section 4(f) in eliminating the
threat of self-incrimination to a registrant is discussed at pages 715-716.
35 “The object [of the privilege) was to insure that a person should not be
compelled, when acting as a witness in any investigation, to give testimony
which might tend to show that he himself had committed a crime.” Counselman
v. Hitchcock, 142 U.S. 547, 562 (1892).
Ill The privilege was held to apply in bankruptcy pro ceedin~s. “The privilege
is not ordinarily dependent upon the nt\ture of the proceedmg in which the
testimony is sought or is to be used. It applies alike to civil and criminal proJuly)
COMMENTS 711
and without regard to the forum, whether court, grand jury,37 legislative
body,:n or administrative agency.39
Grounding its decision on this view, the United States District
Court for the District of Columbia recently acquitted five Communists
of contempt of Congress charges for refusing to answer
questions before the House Un-American Activities Committee.
The government had argued that the procedures in testifying before
a Congressional committee and a grand jury were different, thus
hoping to avoid the effect of the Blau decision. Said Judge Metzger:
I can’t see any actual differences in procedure whether before a
grand jury, Congressional committee or any other inquisitorial
body.
The Constitution stands . .. with the same force and effect
whether the questioning is before a grand jury or anybody.40
There is however a certain class of cases which stands as an exception
to this general rule. In these, the compulsion to give inceedings,
wherever the answer might tend to subject to criminal responsibility
him who gives it.” McCarthy v. Amdtstein, 266 U.S. 34, 40 {1924). See also
WIGMORE, EviDENCE §§ 2252, 2257; In Boyd v. United States, 116 U.S. 616
(1896), the privilege was held to apply in proceedings in rem to establish a. forfeiture
of goods for an offence against the custom revenue laws. Though civil
in form, a forfeiture is a “criminal case” within the meaning of the Fifth Amendment.
17 Blau v. United States, 340 U.S. 159 {1950); Hale v. Henkel, 201 U.S. 43
(1906); Counselman v. Hitchcock, 142 U.S. 547 (1892).
18 Under a state constitutional provision which reads “No subject shall … be
compelled to accuse, or furnish evidence against himself,” the privilege was held
to apply before a special committee of the legislature where the witness was
asked whether he engaged in or knew of any corrupt practices of the state police.
Henry Emery’s Case, 107 Mass. 172 {1871). Where South Carolina has a selfincrimination
clause identical to that of the Federal Constitution, ” . .. it is
uniformly held that the privilege is one which may be invoked in any lega.l investigation
… ” including before legislative committees. In re Hearing before
Joint Legislative Committee, 187 S.C. 1, 8, 196 S.E. 164, 167 {1938). See also
Dole v. Hofstader, 237 N.Y. 244, 177 N.E. 489 (1931) (investigation before New
York legislature); United States v. Bryan, 339 U.S. 323, 335, 347 (1950) and
United States v. Barsky, 72 F. Supp. 165 (D.C. 1947) (privilege assumed to
apply before Congressional committee). No case has been found where the
general applicability of the privilege to Congressional committees has been
cha!Ienged. Such litigation as has developed out of Congressional committees
has dealt with the breadth of the immunity granted, as in the Barsky and Bryan
casesi mpra. For recent cases upholding the claim of privilege before Congressiona
committees, see note 63 infra.
u Brown v. Walker, 161 U.S. 591 (1896) (privilege assumed to apply before
the ICC where the constitutionality of an immunity statute was being challenged);
Internal Revenue Agent v. Sullivan, 287 Fed. 138 (W.D.N.Y. 1923).
The privilege was upheld where a United States revenue agent attempted to
compel the production of records in an inquiry into the correctness of a tax
return. Commonwealth v. Prince, 313 Mass. 223, 46 N.E.2d 755 (1943). The
privile~e was upheld where defendants refused to give the school attendance
superv1sor certain information. Estes v. Potter, 183 F.2d 865 (5th Cir. 1950),
cert. denied, 340 U.S. 920 (1951). The privilege was upheld where the witness
refused to testify concerning Communist affiliation before immigration officials.
•o N.Y. Times, Jan. 17, 1951, p. 16, col. 6.
712 WISCONSIN LAW REVIEW [Vol. 1951
criminating testimony is held not to contravene the Fifth Amendment.
Thus public0 or business42 books and records required by law to
be kept cannot be suppressed by those whose duty it is to keep them.
But statutes requiring such information may merely require a future
report of a 11generic class of acts, irrespective of the criminality of
any particular one” 11which may or may not be criminal at the choice
of the party reporting.“43
It is apparent that these statutes cannot be extended t0 require
future reports of specific criminal acts.4‘ If incriminating testimony
could indeed be compelled in this manner, the privilege could be
effectively nullified by the mere legislative enactment that persons
register any crimes they commit.
It seems, therefore, that the privilege will not be weakened where
the incriminating testimony is sought through registration proceedings,
as under the McCarran Act. An extension of the privilege to
this situation is dictated by the policy of the privilege.46
41 People v. Coombs, 158 N.Y. 532, 53 N.E. 527 (1899). The official‘s obligation
as an offu;ial to produce the records overrides his privilege as a witness to conceal
any incriminatory information within them.
42 They are not ” private and personal” but “quasi public.” United States v.
Kempe, 59 F. Supp. 905 (N.D. Ia. 1945) (failure to demand rationing coupons
on sale of g1.18). See also Amato v. Porter 157 F.2d 719 (lOth Cir. 1946) (records
kept under the Emergency Price Controi Act were held not privileged); United
States v. Mulligan,~ 268 F. 893 (N.D.N.Y. 1920). Persons licensed and keeping
records under .the Lever Act were deemed, with regard to those records, to have
“waived the Constitutional right [under the Fifth Amendment).“
41 8 WIGMORE, EviDENCE § 2259 o. The ultimate rationale for these decisions
would seem to be this (though the oases do not clearly express it): as between
the dangers ~plicit in curbing the privi_lege, o~ the one ha~d; and O!l the other,
the benefits (m the form of more effecttve busmess regulatiOn) fiowmg from an
unfettered access to “quasi public” records, policy considerations require that
the privilege yield to the right of inspection. See Note, Quasi Public Records and
Self-Incrimination, 47 CoL. L. REv. 838 (1947).
44 United States v. Lombardo, 228 Fed. 980 (W.D. Wash. 1915), aff’d on other
grounds, 241 U.S. 73 (1916). A statute required any person harboring an alien
for the purpose of prostitution to register thts fact with t he Commissioner General
of lminigration. This testimony was held privileged. This case can readily be
distinguished from the case in notes 41 and 42, supra. It is the difference between
disclosing that which as an exception and at the choice of the reporter may be
criminal, and confessing a fact which invariably, in the nature of the required
information tends to incriminate. In Sullivan v. United States, 15 F.2d 809,
811 (4th Cir. 1926), the circuit court held that a tax statute was an unconstitutional
abridgment of the privilege against self-incrimination in so far “as it
requires a return from one whose income is derived from a violation of the criminal
law … ” The Supreme Court reversed, 274 U.S. 259, 263 (1927) but on the ground
that ” . . . he could have raised the [Constitutional] objection in the return, but
could not . . . refuse to make any return at all.” The Court did not decide what
information specifically he would be entitled to suppress.
” [The privilege] exists in order to stimulate the prosecution to full and
fair search for evidence procurable by their own exertions, and to deter them
July) COMMENTS
Is THE PRIVILEGE DESTROYED BY FoRCE o:F THE “IMMUNITY”
PRovisiONS oF THE McCARRAN AcT?
713
A witness is entitled to stand mute only if testimony sought “tends
to incriminate.” Therefore, if a statute abolishes that tendency to
incriminate, the testimony is no longer privileged. To effectively
supplant the constitutional privilege, however, a compulsory testimony
statute must provide a protection fully as broad as the one
it is intended to replace. In judging the validity of such statutes
therefore, it is essential to determine how broad a scope the courts
have assigned to the phrase “tend to incriminate.” Historically, two
basic definitions, varying in their inclusiveness, have emerged. The
fiTst considered only such facts incriminating as disclosed “necessary
and essential parts of a crime. ” 46
For example: embezzlement requires three elements. (I) A position
of trust, (2) the receipt of valuables and (3) their improper disposal.47
Facts admitting any one of these three elements were held privileged
under this standard. And as Judge Learned Hand has elaborated,48
under this standard,
. . . nobody supposes that the privilege is confined to answers
which directly admit one of these [parts of a crime]; it covers
also such as logically, though mediately, lead to any of them; …
A witness would, for example, be privileged from answering
whether he left his home with a burglar’s jimmy in his pocket,
though that is no part of the crime of burglary.
Such are the limits of the narrower definition; the fact must admit
an essential part of a crime or must logically lead to one. This doctrine
was enunciated in United States v. Bun-49 and according to
Wigmore was the unquestioned limit of the privilege till “latter-day
courts who treated the privilege with morbid delicacy,” “wrenched
and extended” the rule to include facts of a broader type. 50
The broader view extends the protection to facts which, while
not in themselves essential elements of any crime, might provide
from a lazr and pernicious reliance upon the accused’s testimony extracted
by force o Jaw .
. . . The privilege protects a person from any disclosure sought by legal
proceas against him as a witness.
8 WIGMORE, EviDENCE § 2263. See also § 2251.
•a United States v. Burr (In re Willie), 25 Fed. Cas., No. 14,692e at 40 (C.C.D.
Va. 1807).
47 This example is discussed in 8 WIGMORE, EVIDENCE § 2260.
48 United States v. Weisman, 111 F.2d 260, 262 (2d Cir. 1940).
4′ United States v. Burr (In re Willie), 25 Fed. Cas. 38, No. 14,692e (C.C.D.
Va. 1807).
1° For Wigmore‘s vitriolic attack see 8 WIGMORE, EVIDENCE §§ 2261, 2283.
714 WISCONSIN LAW REVIEW [Vol. 1951
clues to the detection of witnesses and evidence-which in tum disclose
criminal facts. Relying on this rule, a witness might refuse to
answer the question, “Who did you see gambling in X card game?”
For he might fear that the gamblers so identified would later testify
that he himself had been playing in that very card game. 51 Here the
fact protected does not provide a logical link in the proof of any part
of a crime. It “tends to incriminate” because it can lead the investigator
by extra-judicial means to other witnesses who in tum may disclose
criminal facts.
The distinction is crucial in determining the validity of a statute
seeking to compel the disclosure of incriminating testimony by
abolishing its tendency to incriminate; for clearly, the breadth of the
required “immunity” depends on the breadth of the “tendency to
incriminate.”
Under the first definition of “incriminating,” the statute need
bar only the evidentiary use of compelled testimony; under the second
definition, the immunity statute would in addition, have to prevent
the use of compelled testimony as a source of clues that could furnish
the means of convicting the witness.
Some authorities, Professor Wigmore among them, consider the
broader view of the privilege an unwarranted perversion of its
original scope. However that may be, there seems to be litt le question
that the courts are firmly committed to this broader view.51•
In a series of cases grounded on the doctrine of Counselman v.
Hitchcock, 52 the courts have held that to be valid, a statute compelling
privileged testimony must afford “absolute immunity against future
prosecutions for the offense to which the question relates.”63 The
statute therefore must protect the witness against the use of privileged
testimony either as evidence or as clues to search out other testimony
to be used against him. 54
In response, perhaps, to numerous strongly-voiced criticisms55 of
61 This is an actual case quoted in 8 WIGMORE, EviDENCE § 2261.
612 Whatever may have been the original limits of the privilege … since
Counselman v. Hitchcock, . .. it is settled in federal courts that a witness
cannot be compelled to disclose anything that will “tend” to incriminate
him, whether or not the answer would be an admission of one of the constitutive
elements of the crime.
United States v. St. Pierre, 132 F.2d 837, 838 (2d Cir. 1942).
62 142 u.s. 547 (1892).
n I d. at 564.
64 Counselman v. Hitchcock, 142 U.S. 547 (1892) and Arndtstein v. McCarthy,
254 U.S. 71 (1920) both declared a statute that forbade the evidentiary use of
testimony (but not its clue-seeking use) insufficient to annihilate the privilege.
For a listing of the accordant holdings and a sharp criticism of them, see 8 WIGMORE,
EviDENCE § 2283.
65 Hea.ring before Committee on the Judiciary on H.R. 585B, 80th Cong., 2d
Sess. (1948); Hearing before Subcommittee of the Committee on the J udicianJ on
S. 1194 and S. 1198, 8lst Cong., 1st Sess. (1949).
July) COMMENTS 715
the McCarran Act’s predecessors (the Mundt-Nixon,66 MundtJohnson,
67 and Ferguson58 bills) on the grounds that they violated
the constitutional provision against self–incrimination, this provision
was written into the McCatTan law:
The fact of the registration of any person .. . as an officer or
member of any Communist organization shall not be received
in evidence against such person in any prosecution for any alleged
violations of . . . [Section 4(a) of this statute] . . . or for any
alleged violation of any other criminal statute.59
It is perfectly clear that this provision of the McCarran Act,
barring the evidentiary use of compelled testimony, neither prevents
the use of a registrant’s testimony to search out other testimony
which could be used in evidence against him nor does it offer absolute
immunity against future prosecutions. Quite the contrary: the fact
of registration by a Communist would almost certainly help the
government uncover evidence by other means to prove him a Communist
or show illegal activities on his part. And the use of evidence
other than the fact of registration in a prosecution under the Smith Act
or Section 4(a) of the McCarran Act itself would in no wise be barred.
This provision of the McCarran Act fails to meet the requirements
of the broader definition as required by the Counselman decision. It
would therefore seem an ineffectual substitute for the constitutional
privilege against self-incrimination.
Powerful support for the continued validity of the Counselman
doctrine has recently come from two sources. In United States v.
Bryan,60 the Supreme Court considered the sufficiency of the compulsory
testimony act now governing congressional committees. The
act provides :61 “No testimony given by a witness before . . . any
committee of either House, . . . shall be used as evidence in any
criminal proceeding against him in any court … ” Its purpose was to
provide an immunity in exchange for which it was thought testimony
could be compelled. The court said by way of dictum:
That purpose was effectively nullified in 1892 by t his court‘s
decision in Counselman v. Hitchcock . .. holding that R. S. § 860,
a statute identical in all material respects with R. S. § 859, was
M H.R. 5852, 80th Cong., 2d Sess. (1948).
n S. 1196, 81st Cong., 1st Sess. (1949).
68 S. 1194, 81st Cong., 1st Sess. (1949).
60 Pub. L. No. 831, 81st Cong., 2d Sess. § 4(f) (Sept. 23, 1950) (Internal Security
Act of 1950).
60 339 u.s. 323 (1950).
61 REv. STAT. § 859, 18 U.S. C.§ 3486 (Supp. 1950).
716 WISCONSIN LAW REVIEW [Vol. 1951
not a sufficient substitute for the constitutional privilege of
refusing to answer self-incriminating questions.82
It is very difficult to see how Section 4(£) of the McCarran Act,
which merely excludes the evidentiary use of compelled testimony,
is any less “effectively nullified” by the Counselman holding than the
statutes discussed by the Court in the Bryan case.
Secondly, in recent months, there has been a flood of acquittals88
in prosecutions for alleged contempt of Congress. The continued right
of witnesses to claim the privilege before Congressional committees,
in spite of the statute barring the use of testimony as evidence,
amounts to a direct holding that the narrower immunity statute is
incapable of nullifying the privilege.M
In contrast, statutes granting entire immunity in exchange for
otherwise privileged testimony have been consistently held valid.
The leading case in point is Brown v. Walker.65 The statute considered
there bad been written with a wary eye toward the Counselman case.
It said: “no person shall be prosecuted . . . for any transaction . . .
concerning which he may testify … ” 66 It was this statute which was
construed in the Brown case to grant complete immunity. Because
it was as broad as the constitutional protection, the immunity was
held an adequate substitute for the privilege. This act has become the
pattern for statutes of its type and has not seriously been challenged
for want of constitutionality.67
Another sentence of Section 4(f) of the McCarran Act requires
comment. It reads:
12 339 U.S. 323, 335 (1950).
u The following witnesses were acquitted of contempt of Congress charges
brought as a result of their refusal to answer questions before the House UnAmerican
Activities Committee on the ground of possible self–incrimination:
forty witnesses in the district court for Hawaii, N. Y. Times, Feb. 25, p. 69,
col. 1; Frederick Vanderbilt Field, N.Y. Times, Mar. 22,!. 37, col. 4; Thomas
Fitzpatr~ck and Talmadge Riley,. officials of the Unit!: Electri~ Worker~1 N.Y. Times, Apr. 4, p. 18, col. 7, Pasquale Branca, Cb1cago Sun-Times, Apru
12, p. 14, col. 1; Dr. Clarence Hiskey, N. Y. Times, Apr. 14, p. 6, col. 2; and
Lowse Berman, Chicago Sun-Times, May 3, p. 26, col. 1.
Julias Emspak and another, officials of the United Electrical Workers, were
convicted of contempt of Congress for refusing to answer questions but on the
ground that they bad failed properly to assert the privilege. N. Y. Times, Feb.
27, p. 14, col. 3.
64 In acquitting two leaders of the United Electrical Workers, U. S. District
Judge James W. Morris “told Congress how it can get information it needs
without impairing the constitutional rights of witness(es].” Chi ca~o Sun-Times,
Apr. 4, p. 18, col. 1. Congress must provide “complete immunity.’ It must give
protection as broad as the ConstitutiOn.
~ 161 u.s. 591 (1896).
GG 27 STAT. 443 (1893), 49 u.s.c. § 46 (1946).
67 8 WIGMORE, EVIDENCE § 2281.
July) COMMENTS 717
Neither the holding of office nor membership in any Communist
organization by any person shall constitute per se a violation
of … [Section 4(a) of this statute] . . . or any other criminal
statute.
As a clarification of legislative policy this can meet with no objection.
But as an attempt to destroy the privilege by denying the
criminality of Communist Party affiliations, it is wholly inadequate.
It is long settled law that the privilege is not restricted to testimony
which discloses per se a violation of some statute.
The Supreme Court’s decision in the Blau case rests squarely on
this point: whether admissions as to Communist Party membership
support a criminal conviction by themselves is immaterial. Such admissions
are privileged since they might furnish a link in a prosecution
for violation of the Smith Act.68 The quoted passage of Section 4(f)
does not, therefore, serve to vitiate the privilege of silence where
otherwise it exists.s9
CoNCLUSION
The Supreme Court has unequivocally held that testimony as to
Communist Party affiliation “tends to incriminate” under the Smith
Act and is therefore privileged. It would seem that the same logic
which justifies this result makes such testimony equally privileged
in view of the crimes defined in the McCarran Act, and the fact that
the disclosure is sought through registration proceedings rather than
in open court would seem to be inconsequential.
Furthermore the constitutional privilege does not yield to the
“immunity” granted in the McCarran Act. That immunity is not
complete; it is not as broad as the constitutional protection it is
intended to supplant and therefore cannot replace it.
It is therefore concluded that the compulsory registration features
of the McCarran Act are unconstitutional.
LEONLETWIN
as See page 707.
88 The courts of two states have declared Communist registration ordinances
to be violations of state constitutional provisions a~ainst self-incrimination.
Maryland v. Perdew, 19 U.S.L. WEEK 2357 (1951); California v. McCormick,l9
U.S.L. WEEK 2406 (1951).
‘
Leon Letwin (1929-2015) 