# Rogers v. United States (340 U.S. 367)/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Black
United States Supreme Court
340 U.S. 367
Rogers v. United States (340 U.S. 367)
Argued: Nov. 7, 1950. --- Decided: Feb 26, 1951
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS concur, dissenting.
Some people are hostile to the Fifth Amendment's provision unequivocally commanding that no United States official shall compel a person to be a witness against himself. They consider the provisions as an outmoded relic of past fears generated by ancient inquisitorial practices that could not possibly happen here. For this reason the provilege to be silent is sometimes accepted as being more or less of a constitutional nuisance which the courts should abate whenever and however possible. Such an end could be achieved by two obvious judicial techniques: (1) narrow construction of the scope of the privilege; (2) broad construction of the doctrine of 'waiver.' Any attempt to use the first of these methods, however, runs afoul of approximately 150 years of precedent. See Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, and cases there cited. This Court has almost always construed the Amendment broadly on the view that compelling a person to convict himself of crime is 'contrary to the principles of a free government' and 'abhorrent to the instincts of an American'; that while such a coercive practice 'may suit the purposes of despotic power * * * it cannot abide the pure atmosphere of political liberty and personal freedom.' Boyd v. United States, 116 U.S. 616, 632, 6 S.Ct. 524, 533, 29 L.Ed. 746; but cf. United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210.
The doctrine of waiver seems to be a more palatable but equally effective device for whittling away the protection afforded by the privilege, although I think today's application of that doctrine cannot be supported by our past decisions. Of course, it has never been doubted that a constitutional right could be intentionally relinquished and that such an intention might be found from a 'course of conduct.' Shepard v. Barron, 194 U.S. 553, 568, 24 S.Ct. 737, 742, 48 L.Ed. 1115. But we have said that intention to waive the privilege against self-incrimination is not 'lightly to be inferred' and that vague and uncertain evidence will not support a finding of waiver. Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264, relying on Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, and cases there cited. In the case of this petitioner, there is no evidence that she intended to give up her privilege of silence concerning the persons in possession of the Communist Party records. To the contrary, the record-as set out in the Court's opinion-shows she intended to avoid answering the question on whatever ground might be available and asserted the privilege against self-incrimination at the first moment she became aware of its existence. This fact and the cases which make it crucial are ignored in the decision today.
Apparently, the Court's holding is that at some uncertain point in petitioner's testimony, regardless of her intention, admission of associations with the Communist Party automatically effected a 'waiver' of her constitutional protection as to all related questions. To adopt such a rule for the privilege against self-incrimination, when other constitutional safeguards must be knowingly waived, relegates the Fifth Amendment's privilege to a second-rate position. Moreover, today's holding creates this dilemma for witnesses: On the one hand, they risk imprisonment for contempt by asserting the privilege prematurely; on the other, they might lose the privilege if they answer a single question. The Court's view makes the protection depend on timing so refined that lawyers, let alone laymen, will have difficulty in knowing when to claim it. In this very case, it never occurred to the trial judge that petitioner waived anything. And even if voluntary testimony can under some circumstances work a waiver, it did not do so here because what petitioner stated to the grand jury 'standing alone did not amount to an admission of guilt or furnish clear proof of crime * * *.' Arndstein v. McCarthy, 254 U.S. 71, 72, 41 S.Ct. 26, 65 L.Ed. 138.
Furthermore, unlike the Court, I believe that the question which petitioner refused to answer did call for additional incriminating information. She was asked the names of the persons to whom she had turned over the Communist Party books and records. Her anser would not only have been relevant in any future prosecution of petitioner for violation of the Smith Act but also her conviction might depend on testimony of the witnesses she was thus asked to identify. For these reasons the question sought a disclosure which would have been incriminating to the highest degree. Certainly no one can say that the answer '(could not) possibly be used as a basis for, or in aid of, a criminal prosecution against the witness * * *.' Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819.
The records in this and in the companion cases reveal a flagrant disregard of the constitutional privileges of petitioner and others called before the grand jury. The Special United States Attorney in charge made unwarranted assurances that might well have misled witnesses unable to match legal wits with him into making self-incriminating admissions. Although petitioner had been allowed on a previous day to consult with counsel, at the time she was brought before the District Court for final consideration of her case the judge arbitrarily refused to permit counsel to speak in her behalf, summarily commanding the attorney to sit down, and almost immediately thereafter sentenced petitioner to four months' imprisonment. In convicting her, the district judge neither held nor intimated that the privilege against self-incrimination had been waived. His erroneous belief was that intimate association with the Communist Party was not an incriminating fact. Therefore, although the Court now describes petitioner's claim of privilege as on 'afterthought,' it seems to me that the real 'afterthought,' in this case is the affirmance of the judgment below on a 'waiver' of equivalent theory. More important, however, I believe that today's expansion of the 'waiver' doctrine improperly limits one of the Fifth Amendment's great safeguards.
I would reverse the judgment of conviction.
APPENDIX.
The following is the full transcript of proceedings at the time the judgment now under review was entered:
'The Court: * * * What is the next case? Can we dispose of these ladies now?
'Mr. Goldschein (Special United States Attorney): Mrs. Jane Rogers.
'The Court: Is she here?
'Mr. Goldschein: She is here, yes, sir. Now, may it please Your Honor-
'The Court: Step over here, madam. What is the status of her case?
'Mr. Goldschein: Mrs. Rogers refuses to answer the questions propounded to her in the grand jury room. She was brought back on yesterday, but says that she will answer one question but will not answer any others, and was advised that it would be necessary for her to answer all questions propounded except those which would incriminate her for the violation of a federal offense, and she says she won't answer any.
'The Court: Is that your position, madam?
'Mr. Menin (counsel for petitioner): I think there has been a misunderstanding.
'The Court: Just a minute. Will you please be seated, Mr. Menin? Please be seated.
'Mr. Menin: Well, I represent this lady.
'The Court: Just a moment. Please be seated.
'Mr. Menin: Very well.
'The Court: I'll hear you in due course(.) Madam, do you still persist in not answering these questions?
'Mrs. Rogers: Well, on the basis or Mr. Menin's statements this morning-
'The Court: Will you please answer the question yes or no?
'Mrs. Rogers: Well, I think that's rather undemocratic(.) I'm a very honest person. Would you mind letting me consider-
'The Court: Make any statement you wish.
'Mrs. Rogers: Well, as I said before, I'm a very honest person and I'm not acquainted with the tricks of legal procedure, but I understand from the reading of these cases this morning that I am-and I do have a right to refuse to answer these questions, on the basis that they would tend to incriminate me, and you read it yourself, that I have a right to decide that.
'The Court: You have not the right to say.
'Mrs. Rogers: According to what you read, I do. I stand on that.
'The Court: All right. If you will make no changes, it is the judgment and sentence of the court you be confined to the custody of the Attorney General for four months. Call the next case.' Transcript of Record, pp. 76-78 (September 23, 1948).

## Notes

* ↑ 'This provision (against self-incrimination) must have a broad construction in favor of the right which it was intended to secure.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 198, 35 L.Ed. 1110.
* ↑ While it has been held that failure specifically to invoke the privilege prior to final judgment constituted a waiver, United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560; United States v. Murdock, 284 U.S. 141, 148, 52 S.Ct. 63, 64, 76 L.Ed. 210, such cases are not controlling here. Before final judgment was entered against this petitioner, she asserted the privilege not to incriminate herself under federal law, and was sentenced for standing on this ground. See Appendix following this opinion, 340 U.S. 381, 71 S.Ct. 446.
* ↑ The Court's reliance on Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, as indicating that the privilege can be waived unintentionally is misplaced. For in the Brown case, it was said that 'if the witness himself elects to waive his privilege, * * * he is not permitted to stop, but must go on and make a full disclosure.' (Emphasis supplied.) 161 U.S. at page 597, 16 S.Ct. at page 647, 40 L.Ed. 819.
* ↑ The practical difficulties inherent in the rule announced by the Court are made apparent by a reading of the opinions in United States v. St. Pierre, 2 Cir., 132 F.2d 837, 147 A.L.R. 240.
* ↑ See note 11 and accompanying text, infra.
* ↑ Today's opinion seeks to derive a looser test from certain negative language in the subsequent case of McCarthy v. Arndstein, 262 U.S. 355, 359, 43 S.Ct. 562, 563, 67 L.Ed. 1023, where it was said that if 'the previous disclosure by an ordinary witness is not an actual admission of guilt or incriminating facts, he is not deprived of the privilege of stopping short * * *.' In that very case, however, the Court quoted with approval the minimum rule it had previously announced. 262 U.S. at page 358, 43 S.Ct. at page 563, 67 L.Ed. 1023. Moreover, in stating the reason why Arndstein had not waived his privilege, the Court said: 'And since we find that none of the answers which had been voluntarily given by Arndstein, either by way of denials or partial disclosures, amounted to an admission or showing of guilt, we are of opinion that he was entitled to decline to answer further questions when so to do might tend to incriminate him.' 262 U.S. at pages 359 360, 43 S.Ct. at pages 563-564, 67 L.Ed. 1023.
* ↑ I do not understand the Court's holding to rely on the statement in the opinion that 'Petitioner had no privilege with respect to the books of the Party * * *.' This statement of course is not relevant in the present case where there is no issue of compelling petitioner to turn over unprivileged documents in her possession. But if the Court does intend to suggest that a witness is not privileged in refusing to answer incriminating questions merely because those questions relate to unprivileged documents, then I must point out that the decision in this case is entirely inconsistent with our recent unanimous decision in Blau v. United States, 340 U.S. 159, note 1, 71 S.Ct. 223.
* ↑ Blau v. United States, supra; Blau v. United States, 340 U.S. 332, 71 S.Ct. 301.
* ↑ Although the Court of Appeals upheld the convictions of most of the witnesses called before the grand jury, it made the following comment concerning the conduct of the Special United States Attorney: '(His) stock statement to the witness that she was not under investigation and that the grand jury was not proceeding against her, was not warranted. It was not for him to say what the scope of the grand jury's investigation was; neither was his statement a substitute for her constitutional protection.' Rogers v. United States, 10 Cir., 179 F.2d 559, 563. Other 'irregularities' in the proceedings below were also pointed out. 179 F.2d at page 561. Conduct of the same prosecutor during a similar grand jury investigation in Los Angeles was criticized by judges of the Ninth Circuit in Alexander v. United States, 181 F.2d 480. There it was said that the government attorney 'pursued the same tactics tending to put the witness of his guard * * *.' 181 F.2d at page 482.
* ↑ The transcript of this portion of the proceedings below is set out in the Appendix.
* ↑ The district judge's sole reference to 'waiver' was not made in the case of petitioner. In addressing one of the other witnesses, however, the judge said, 'Of course, anything you testify to, unless you signed a waiver, can't be used against you in any trial hereafter. That's the law, isn't it?' (Emphasis supplied.) The conviction of this witness, Nancy Wertheimer, was the only one reversed by the Court of Appeals. Rogers v. United States, 10 Cir., 179 F.2d 559.
* ↑ For a description of the abuses which led to the incorporation of the privilege against self-incrimination in the Bill of Rights, see Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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