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June 19, 1947

BARSKY et al.

The opinion of the court was delivered by: KEECH

Two objections were interposed by counsel for the defendants to the admission in evidence of certain exhibits offered by the Government covering hearings before the Committee on Un-American Activities of the House of Representatives: (1) that proper foundation has not been laid as to the accuracy and proof of the records; and (2) that 28 U.S.C.A. § 634 prohibits the admission in evidence of the exhibits in question.

As to the first objection, the Court holds that the Government has laid an adequate foundation so far as the accuracy of the exhibits is concerned. This objection is therefore overruled.

 As disclosed by the record, the original statute relating to the matter of testimony before Congressional committees, the right to compel testimony, and the immunity from self-incrimination granted to persons so compelled to testify, has passed through several stages. Congress first dealt with the subject in 1857, 11 Stat. 333, and again in 1938, 52 Stat. 942, 943.

 The history shows that this legislation stemmed from the need of the Congress not only to obtain voluntary testimony, but to be enabled to compel the attendance of witnesses, the giving of testimony, and the production of documents pertinent to matters under inquiry, without infringement upon the Constitutional prohibition against requiring a witness to incriminate himself.

 To provide the necessary authority, the Congress enacted the Act of January 24, 1857, 'more effectually to enforce the Attendance of Witnesses on the Summons of either House of Congress, and to compel them to discover Testimony.' The provision of that Act dealing with the protection of a witness from prosecution was apparently added as a precautionary safeguard, specifically immunizing witnesses from criminal prosecution based upon facts which they might be compelled to disclose, as an offset to the denial of their right to refuse to give self-incriminating testimony. As shown by the debate on the 1862 amendment, the 1857 statute granted immunity in such broad terms that persons who had committed grave crimes against the government welcomed the opportunity to appear before an investigating committee and make general disclosures, thereby immunizing themselves against future criminal prosecution. See the debate on H.R. 219, 37th Congress, 2nd Session, Globe, pp. 428-431. Congress apparently intended the 1862 act to close this loophole and to amend the immunity provision to prohibit only forced self-incrimination.

 Section 634 of Title 28 is but a part of the Act of June 22, 1938, which reenacted in different form, but with slight change, the previous acts, and amended the statute to extend to joint committees the same power possessed by committees of either House. To arrive at the true legislative intent, it is therefore necessary to view the act as a whole.

 The basic purpose of the statute is to require attendance of witnesses, their full response to questions, and the production of records. Sec. 101, R.S., 2 U.S.C.A. § 191, provides that the President of the Senate, the Speaker of the House, or the chairman of a congressional committee, may administer oaths to witnesses in any case under their examination. Sec. 102, R.S., 2 U.S.C.A. § 192, provides that a witness shall not refuse to appear to testify or to produce papers, or, having appeared, refuse to testify, under penalty of certain punishment. Sec. 103, R.S., 2 U.S.C.A. § 193, provides that no witness is privileged to refuse to testify to any fact or to produce any paper on the ground of self-incrimination. Sec. 104, R.S., 2 U.S.C.A. § 194, provides the method of certifying to the courts prosecutions for failure to comply with Sec. 102. Further, in order to effectuate the full disclosure required by the preceding sections, Sec. 859, R.S., 28 U.S.C.A. § 634, provides that no testimony received shall be used as evidence in any criminal proceeding, except in prosecutions for perjury committed in giving such testimony.

 The various steps in the legislative history inescapably lead to the conclusion that it was the intent of Congress not to take from any witness his constitutional right, specifically, the immunity from self-incrimination prescribed by the Fifth Amendment. On the other hand, it was just as clearly the intent of Congress to prevent a witness from failing to attend in disobedience of a subpoena or failing to produce records required by subpoena, or, appearing, refusing to answer questions put, and to punish such contempt.

 The issue here raised is whether the purpose of the entire statute would be, or is intended to be, frustrated by construing the immunity granted by Sec. 634 to embrace contempt proceedings, or proceedings growing out of contempt, for violation of the provisions of § 192.

 Significant is the statement found in the Senate report at the time of the enactment of the 1938 act, Senate Report No. 2108, 75th Congress, that the committee had added 'the restrictive section 859 of the present statute so that a person could not have testimony he is required to give without privilege of the rule against self-incrimination used as evidence against him in a criminal proceeding.'

 The Supreme Court has recognized the right of a court in interpreting a statute, even though it be unambiguous in its terms, to so construe any section thereof so as not to defeat the true purpose of the enactment as a whole. In Glickstein v. United States, 222 U.S. 139, 32 S. Ct. 71, 56 L. Ed. 128, the Court construed a broad immunity clause (containing no exceptions) not to include a prosecution for perjury of a witness in testifying a bankruptcy examination. The Supreme Court there stated (222 U.S. at page 143, 32 S. Ct. at page 73, 56 L. Ed. 128), in discussing the defendant's claim of immunity:

 ' * * * to state the proposition in another form, it is that as the statute in the immunity clause says, 'But no testimony given by him (the witness who is compelled to be examined) shall be offered in evidence against him in any criminal proceeding,' and as these words are unambiguous, there is no room for limiting the language so at to cause the immunity provision not to prohibit the offer of the testimony in the statute expressly commands the giving of testimony, and its manifest purpose is to secure truthful testimony, while the limited and exclusive meaning which the contention attributes to the immunity clause would cause the section to be a mere license to commit perjury, and hence not to command the giving of testimony in the true sense of the word.

 ' * * * it is impossible in reason to conceive that Congress commanded the giving of testimony, and at the same time intended that false testimony might be given with impunity, in the absence of the ...

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