Monthly Archives: July 1951

1951.07.00: Communist Registration Under the McCarran Act and Self-Incrimination (Wisconsin Law Review)

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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).





(1) Under the Smith Act.


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 witnessclaim, 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 riotand

“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).


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


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);


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 couldnt 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


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.



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


(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


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


ao See note 27 supra.

” See note 12 supra.

n See note 19 supra.

Ita 341 U.S. 494 (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.




Although the Fifth Amendment literally extends the protection

against compulsory selfincrimination 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


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)


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


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.


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 one11which 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.4If 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





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 Wigmores vitriolic attack see 8 WIGMORE, EVIDENCE §§ 2261, 2283.


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


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 selfincrimination, 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).


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 selfincrimination:

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


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


The Supreme Court has unequivocally held that testimony as to

Communist Party affiliation “tends to incriminateunder 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.


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).