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

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United States Supreme Court
356 U.S. 148
Brown v. United States (356 U.S. 148)
Argued: Oct. 22, 1957. --- Decided: March 31, 1958
Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
This is another decision by this Court eroding the constitutional privilege against self-incrimination. See, e.g., Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344.
The questions which petitioner refused to answer undoubtedly called for responses which might have tended to incriminate her. Nevertheless, the Court holds that she can be imprisoned for contempt on the ground that a defendant in a civil action who voluntarily takes the stand to testify waives his privilege against self-incrimination to the extent of relevant cross-examination. Thus in substance the majority has extended the rule heretofore applied in criminal prosecutions to civil proceedings. I think this further encroachment on the privilege is unwarranted. I would reverse the petitioner's conviction on the basis of the general rule stated in Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138; 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023; 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158, that a witness in a civil case does not forfeit the right to claim his privilege unless he makes disclosures which amount to 'an actual admission of guilt or incriminating facts.' 262 U.S. at page 359, 43 S.Ct. at page 563. Petitioner concededly made no such disclosures.
In my judgment the rule of waiver now applied in criminal cases, although long accepted, is itself debatable and should not be carried over to any new area absent the most compelling justification. By likening the position of a defendant who voluntarily takes the stand in a civil case to that of an accused testifying on his own behalf in a criminal prosecution the majority unfortunately fails to give due consideration to material differences between the two situations. For example failure of a criminal defendant to take the stand may not be made the subject of adverse comment by prosecutor or judge, nor may it lawfully support an inference of guilt. 18 U.S.C. § 3481, 18 U.S.C.A. § 3481; Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650. On the other hand the failure of a party in a civil action to testify may be freely commented on by his adversary and the trier of fact may draw such inferences from the abstention as he sees fit on the issues in the case. Bilokumsky v. Tod, 263 U.S. 149, 153-154, 44 S.Ct. 54, 55-56, 68 L.Ed. 221. Thus to apply the criminal rule of waiver to a civil proceeding may place a defendant in a substantial dilemma. If he testifies voluntarily he can be compelled to give incriminating evidence against himself; but, unlike a defendant in a criminal case, if he remains off the stand his silence can be used against him as 'evidence of the most persuasive character.' Bilokumsky v. Tod, supra, 263 U.S. at page 154, 44 S.Ct. at page 56.
The Court brushes aside this dilemma by assuming that a civil defendant can control the scope of his waiver when he voluntarily takes the stand because he 'determines the area of disclosure and therefore of inquiry.' I do not believe this assumption is correct. While it is true that a party can determine the area of his own disclosures on direct examination, the scope of permissible cross-examination is not restricted to the matters raised on direct but may include other and quite different matters if they will aid the court or jury to appraise the credibility of the witness and the probative value of his testimony. Such questions, which may range over a broad area and refer to matters collateral to the main issues, cannot be foreclosed by the witness and often cannot even be anticipated by him. See, e.g., Radio Cab, Inc., v. Houser, 76 U.S.App.D.C. 35, 128 F.2d 604; Atkinson v. Atchison, Topeka & Santa Fe R. Co., 10 Cir., 197 F.2d 244. See also Powers v. United States, 223 U.S. 303, 314-316, 32 S.Ct. 281, 283-284, 56 L.Ed. 448.
Furthermore a party to a civil action, unlike the defendant in a criminal case, may be compelled by his adversary to take the stand and thus forced into a situation (as illustrated by this case) where he must claim the privilege or incriminate himself. By claiming his privilege he may well prejudice his case for reasons wholly unrelated to its merits. In order to mitigate this damage he may feel great compulsion, either on cross-examination by his own counsel or by taking the stand later on his own behalf, to dispel some of the impression created by the claim of privilege. But this he cannot do under the Court's holding without thereby forfeiting his constitutional privilege.
The reason offered by the Court for compelling a civil defendant to incriminate himself or be imprisoned for contempt is that to do otherwise would be to accept testimony untested by cross-examination and thus extend 'a positive invitation to mutilate the truth a party offers to tell.' If punishment for contempt were the only method of protecting the other party and the trier from a one-sided, distorted version of the truth the substantial encroachment made by the majority on the privilege against self-incrimination might be somewhat more tolerable. But it is not. For example, as an obvious alternative, such one-sided testimony might be struck in full or part, if the occasion warranted, with appropriate directions by the judge for the jury to disregard it as unreliable. And in some instances where the prejudice to the opposing party was extreme and irremediable the court might even enter judgment in his favor. See Hammond Packing Co. v. State of Arkansas, 212 U.S. 322, 349-354, 29 S.Ct. 370, 379 381, 53 L.Ed. 530. Compare National Union of Marine Cooks v. Arnold, 348 U.S. 37, 75 S.Ct. 92, 99 L.Ed. 46. By such means the trial judge could protect the right of the opposing party to a fair trial. At the same time the witness would not be treated as having waived his privilege so that he could be punished by fine or imprisonment for refusing to incriminate himself.
Since I believe that petitioner's conviction should be reversed for the reasons stated above, I find it unnecessary to discuss whether she was entitled to a trial with all the safeguards of the Bill of Rights before she could be punished for the crime of contempt. My views in that respect are set forth in some detail in my dissenting opinions in Sacher v. United States, 343 U.S. 1, 14, 72 S.Ct. 451, 457, 96 L.Ed. 717, and Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648.

## 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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