# Brown v. United States (356 U.S. 148)/Dissent Brennan

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* Dissenting Opinions Black Brennan
United States Supreme Court
356 U.S. 148
Brown v. United States
Argued: Oct. 22, 1957. --- Decided: March 31, 1958
Mr. Justice BRENNAN, dissenting.
I would reverse this judgment. The District Courts do not have the untrammeled discretion to punish every contemptuous act as a criminal contempt. That is the basic teaching of such decisions as Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, and In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30. It will not be gainsaid that danger of abuse of this extraordinary power inheres in the absence of the safeguards usually surrounding criminal prosecutions, notably trial by jury and any but self-imposed judicial restraints upon the extent of punishment. That danger of abuse has required this Court closely to scrutinize these cases to guard against exceeding the bounds of discretion in the use of the power. We do so in the exercise of our general supervisory authority over the administration of criminal justice in the federal courts, McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819, but primarily because of the 'importance of assuring alert self-restraint in the exercise by district judges of the summary power.' Offutt v. United States, 348 U.S. 11, 13, 75 S.Ct. 11, 13, 99 L.Ed. 11.
With that principle in mind, I cannot conclude that it was proper to convict petitioner of criminal contempt. Her contempt consisted in refusing to answer questions put to her on cross-examination because she believed that the Fifth Amendment afforded her a privilege to make such refusals. The majority concedes that the reason given to the petitioner by the trial judge to prove her waiver was an incorrect one but concludes that 'Taken in context * * * (it) conveyed a correct statement of the law * * *.' The fact remains that the trial judge's ruling on waiver was incorrect. He advised Mrs. Brown that she had waived her privilege by the simple act of taking the stand. But the rule that the privilege is waived by taking the stand developed in criminal cases as an historical corollary of the fact that the accused could not even be called or sworn as a witness. 8 Wigmore, Evidence (3d ed. 1940), § 2268. It has no application in civil cases. In civil cases the most that can be said is that a party witness subjects himself to cross-examination as to all matters testified to on direct.
The trial judge made his final ruling on the question of waiver on the morning of February 18, 1955. He repeated his statement that Mrs. Brown had waived her privilege by taking the stand. The petitioner, believing that her conduct was privileged, continued to refuse to answer. No further evidence was offered after the petitioner's refusal to answer the questions put to her on cross-examination by the Government. On that same afternoon the trial judge delivered his opinion finding 'by clear, unequivocal and convincing evidence, that the defendant did procure her citizenship illegally and fraudulently.' He then proceeded to hold the petitioner in contempt for her refusal to answer. It is true that at this time he advised the petitioner that she had waived her privilege by the testimony which she had given but it was of little help coming at the same time as the sentence.
In these circumstances, I can hardly believe that petitioner was guilty of such contempt of the authority of the court as to merit six months' imprisonment. The most that can be said of her conduct was that her lawyer could not predict that 'taken in context' the appellate courts would sustain the trial judge's technically incorrect ruling on waiver.
This Court has recognized that the criminal-contempt power should be limited in its exercise to 'the least possible power adequate to the end proposed,' In re Michael, supra, 326 U.S. at page 227, 66 S.Ct. at page 79. The 'end proposed,' it should be clear, is not to impose vengeance for an insult to the court whose decree has been flouted, but to aid the fair and orderly administration of justice by deterring noncompliance with the court's lawful order. But I think that in contempts, as in other areas of the law, penal sanctions should be used sparingly and only where coercive devices less harsh in their effect would be unavailing. In other words, there is a duty on the part of the district judges not to exercise the criminal-contempt power without first having considered the feasibility of the alternatives at hand. Mr. Justice BLACK persuasively demonstrates in his dissenting opinion that the trial judge here might reasonably have resorted to several corrective devices to avoid both prejudice to the Government's case and unnecessary delay in the conduct of the trial. Cf. Rubenstein v. Kleven, D.C., 150 F.Supp. 47; Fed.Rules Civ.Proc. 37(b). In addition, it appears that ordinary exercise of the civil-contempt power, cf. Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95, not even considered so far as this record shows, might have succeeded in achieving all the ends of justice without requiring resort to the far more drastic criminal sanction.
The Court does not ground the affirmance upon any finding that Mrs. Brown's conduct was actually disrespectful of the trial judge or that she obstinately flouted his authority. Indeed, her resort to her Fifth Amendment rights manifestly had substantial merit, for the majority does not say that the Amendment's protection against being required to give incriminating answers did not apply to the questions, but only that she waived the protection of the Amendment in the circumstances.
The situation, it seems to me, cried out for 'alert self-restraint' by way of consideration of the other available correctives, before the judge took the particularly harsh step of sending Mrs. Brown to jail for six months. The trial judge gave no thought to the use of the other sanctions and, in my view, his exclusive reliance upon the criminal contempt power was arbitrary in the circumstances. I would therefore set aside the conviction.

## Notes

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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