liberties, so recently gained by the American Revolution and which they had protested to the imperial heads of England, should not be lost in the untried Federal Government which the Constitution established. Accordingly, the first ten amendments were voted at the outset of the ratification of the Constitution, and they apply strictly to the Federal Government. The Fifth Amendment declares: 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' (Emphasis supplied.) In the early stages of the development of the common law, a defendant in a criminal case was not permitted to testify nor be represented in court by counsel. When one further considers that the grand jurors were persons who had actual knowledge of commission of crimes in their locality and were assembled in advance of the king's justices, then moving in circuits, one can understand the reluctance of the American colonists to permit the Federal Government to compel a defendant in a criminal case to give testimony against himself. It was anciently established that no person should be compelled to give testimony against himself. This came about as orderly progression of the growth of criminal procedure as a part of the common law. However, it appears to be of more recent origin than the next point to be discussed insofar as the ratification of the Constitution was concerned.
Growing up with the development in the criminal law, but ancient by many years, was the proposition that there was an inherent right in Government to subpoena and inquire of citizens concerning activities for which legislation was necessary. This information was then, as it is now, vital to the legislative process. The earliest instances of punishment visited by the House of Commons upon contumacious and prevaricating witnesses summoned before Parliamentary inquiries related to disputed elections. The earliest recorded instance appears in the year 1586. Later, in 1604, in Sir Francis Godwin's case, where Parliament was inquiring into election irregularities, it was stated: 'Power given in that Case to send for an Officer, and to view and search any Record or other thing of that kind, which may help their Knowledge or Memory in this particular Service'. On June 4, 1621, Randolph Davenport was imprisoned for misinforming a committee before whom he was called as a witness. There was a Parliamentary investigation in 1688 into the conduct of the war in Ireland. There also appears to have been legislative power as early as 1789 in the American colonies, and it was well entrenched when the Constitution was ratified. Undoubtedly the framers had its ancient origin in mind as it laid the framework of the American Federal Government.
These two streams of social control flowed parallel to each other in their development through the centuries. This development has been the subject of careful study by many scholars, and is thoroughly discussed in Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harvard Law Review 153 (1926). It is now well established that Congress has the power to compel pertinent disclosures. McGrain v. Daugherty, 1927, 273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580; also that a Congressional inquiry may be as broad as the legislative purpose requires Townsend v. United States, 1938, 68 App.D.C. 223, 95 F.2d 352; and that a legislative purpose will be presumed in authorizing a Congressional investigation. In re Chapman, 1897, 166 U.S. 661, 17 S. Ct. 677, 41 L. Ed. 1154. The pertinency of the evidence is not determined by its probative value, and like the question of relevancy in a trial, it is a question of law; but the witness may be punished if he mistakes the law, since the issue of good faith is not involved. Sinclair v. United States, 1929, 279 U.S. 263, 49 S. Ct. 268, 73 L. Ed. 692. The witness of course must be properly before the committee either by reason of service of process or by voluntary appearance. The procedure before the committee is informal, but precedent has fully established the practice of informing a witness of his rights of immunity at the hearing. A claim of immunity under the Fifth Amendment is personal to the witness. Brown v. Walker, 1896, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819.
If there has been any doubt that the Fifth Amendment applies to testimony before Congressional committees, it has been dispelled by many decisions, and in fact, was recognized by Congress itself in 1857 when it enacted an immunity statute, 11 Stat. 155, from which R.S. § 859, codified in 18 U.S.C.A. 3486, stems. It provides: 'No testimony given by a witness before either House, or before any committee of either House, or before any joint committee established by a joint or concurrent resolution of the two Houses of Congress, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege.' (Emphasis supplied.)
The avowed purpose of that Act was to 'enforce the Attendance of Witnesses * * * and to compel them to discover Testimony'. Congress thus sought to compel testimony which might be protected by the Fifth Amendment by granting the immunity of R.S. § 859. To this day that section remains virtually as enacted as 18 U.S.C.A. § 3486, untested by Court decision although relegated to a doubtful status by United States v. Bryan, 1950, 339 U.S. 323, 70 S. Ct. 724. In that case the court considered section 859 by analogy to R.S. § 860, a statute identical in all material respects with R.S. § 859, and which was considered in Counselman v. Hitchcock, 1892, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110. The court in this latter case held that R.S. § 860 was not an adequate substitute for the protection of the Fifth Amendment regarding self-incrimination. In United States v. Bryan, supra, Mr. Chief Justice Vinson, speaking for the majority of the Court, went beyond the issues involved to indicate that R.S. § 859 is no more of a substitute than was R.S. § 860. The Congress repealed R.S. § 860 in 1910.
On the other hand, immunity statutes have been enacted in regard to administrative hearings which do afford an adequate substitute for the Fifth Amendment. In United States v. Eisele, 1943, 52 F.Supp. 105, decided by Judge Pine of this District Court, a prosecution was barred because of testimony given under the immunity of 15 U.S.C.A. § 77v(c). Similarly, in Smith v. United States, 1949, 337 U.S. 137, 69 S. Ct. 1000, 93 L. Ed. 1264, a prosecution was barred by the immunity of 49 U.S.C.A. § 46. The two immunity statutes cited above contain the words 'no person shall be prosecuted * * * for or on account of any transaction, matter or thing, concerning which he may testify'. This remission of responsibility for criminal acts met the absolute test of the constitutional provision against self-incrimination as early as Brown v. Walker, supra, and as recently as Smith v. United States, supra. This type of immunity statute is clearly broader than the phrase 'No testimony given by a witness' which is used in R.S. § 859. There is no doubt that Congress can elicit self-incriminating testimony from a witness provided the witness is offered, in exchange, an immunity from prosecution which is as broad as the Fifth Amendment.
An exhaustive review of cases which require the immunity statute to be as broad as the protection of the Fifth Amendment is contained in 118 A.L.R. 605. It should also be noted that the Fifth Amendment does not give immunity against a State prosecution, as it does against a Federal prosecution. United States v. Murdock, 1931, 284 U.S. 141, 52 S. Ct. 63, 76 L. Ed. 210.
Questions which do not, on their face, require incriminating answers necessitate placing the burden of proof on the witness to show he had substantial reason to believe they demand answers tending to incriminate him. Counselman v. Hitchcock, supra; United States v. Rosen, 2 Cir., 1949, 174 F.2d 187, certiorari denied 338 U.S. 851, 70 S. Ct. 87. Several recent cases have identified specific types of questions as per se calling for incriminating answers. Alexander v. United States, supra; Kasinowitz v. United States, supra; Blau v. United States, 340 U.S. 159, 71 S. Ct. 223. The Alexander case points out that a question such as 'Do you know John Doe?' while not necessarily calling for an incriminating answer, will be held as incriminatory in character upon a showing that any connection with John Doe will subject the witness to a criminal charge of any sort. In addition, the Court is required to take the question in its setting, including other questions asked of the witness. United States v. Weisman, 2 Cir., 1940, 111 F.2d 260. The witness must specifically claim his privilege under the Fifth Amendment, not merely decline to answer the question. Arbitrary or fanciful claims of privilege, however, will not be sustained.
It is clear by now that numerous aspects of the proceedings must be proved to the Court to allow the Court to intelligently decide the issues which may well resolve themselves into questions of law. For example, the use of newspaper clippings has been sanctioned as admissible to show a reasonable apprehension of incrimination, Alexander v. United States, supra; United States v. Weisman, supra, yet this type of evidence must be received with caution. It will certainly not be noticed judicially but must be introduced subject to objections as to relevancy, authenticity and the usual objections to documentary evidence. On a pre-trial motion to dismiss, similar to the motions presented in the cases under consideration here, Judge Caffey of the United States District Court for the Southern District of New York ruled that the procedure in the resolution directing the certification of a case under 2 U.S.C.A. § 192 to the United States Attorney would not be considered on a motion to dismiss, but would be reserved as a matter of defense at the trial. His opinion is reported in United States v. Josephson, D.C. 1947, 74 F.Supp. 958, affirmed, in an opinion which did not discuss this point, 2 Cir., 165 F.2d 82, certiorari denied 333 U.S. 838, 68 S. Ct. 609, 92 L. Ed. 1122. It should also be noted that the U.S. District Court for the District of Hawaii in the case of United States v. Yukio Abe, 95 F.Supp. 992, took cognizance of these problems in deferring a ruling on a motion to dismiss identical to those presented here until the trial of the general issue. Nothing but confusion would result from trying these cases in a piecemeal manner. These several motions to dismiss may undoubtedly be raised with propriety during the course of the trial when there is sufficient evidence before the Court to show the incriminating characteristics of the answers as well as the proper claim of immunity. However, the Court is not in a position to resolve the issues as a question of law at the present stage of the proceedings, and the several motions to dismiss are accordingly overruled.
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