Earl Warren: Number 175, Raley, et al., Appellant, versus the State of Ohio. Mr. Johnson.
Morse Johnson: May it please the Court. The basic question presented by this appeal is whether or not the compelled interrogation of the appellants before the Ohio Un-American Activities Commission violated their basic constitutional liberties as established by the Due Process Clause of the Fourteenth Amendment. The basic simple facts may be briefly stated. These appellants were subpoenaed as to be witnesses in front of the house on -- front of the Ohio Un-American Activities Commission on October the 20th, 1952 in Cincinnati, Ohio. They arrived at the hearings and the hearings were held. The only guidance that they had is to what was under inquiry, what the purpose of the Commission's hearings at that time were, where the mandate itself coupled with a few general statements, which I will refer to later, made by the Chairman of the Commission. The Chairman of the Commission advised these witnesses that they had their privilege against self-incrimination available to them should the questions as -- seek incriminating -- incriminating information.
William O. Douglas: Speak that again.
Morse Johnson: The appellants were assured or the witnesses before the Commission, Mr. Justice Douglas, were assured by the Chairman of the Commission admonished and advised that if questions sought incriminating information, these -- these witnesses could assert their privileges or their privilege against self-incrimination.
William O. Douglas: Where is that in the record?
Morse Johnson: Wait. I'm sorry to take you -- so long, Your Honor, I didn't -- on record 99, 134 and 157 as to each appellant, Your Honor.
William O. Douglas: At 99.
Morse Johnson: Record 99 as to appellant Raley, record 134 as to appellant Stern and at record 157 as to appellant Brown.
William O. Douglas: Thank you.
Hugo L. Black: 157?
Morse Johnson: 157, Your -- Mr. Justice. In addition, Mr. Justice Douglas, throughout the colloquies or the questioning the -- it's implied in -- in much of the discussion between the witnesses and the Commission members that the privilege against self-incrimination was available. For instance, questions were asked as to whether or not that did really seek incriminating information or how would it incriminate the witness. There was no doubt and it can't be argued, as a matter of fact, the Supreme Court of Ohio in its decision in this case stated that the Chairman of the -- of the Commission had obviously in its opinion misstated the law and there is no question here, but that the facts of the case are -- are clear that these witnesses were advised clearly and unequivocally and repeatedly that they had their privileges against self-incrimination. And it might be further notice that to each of the questions for which these witnesses were indicted and which formed the counts in their indictments, they had asserted the privilege against self-incrimination. And in all but one instance, that privilege had been automatically accepted. There was no countermanding order saying that the -- the Commission itself rejected the assertion of the privilege or refused to accept the assertion of the privilege ordered and answered. In only one of the questions which formed the three indictments was there a specific and direct order by the Commission to answer the question. The trial was held. The jury was waived even at the -- at the early -- earliest opportunity on the motions to cross the indictments. The constitutional issues that are now before this Court were raised by the appellants. The trial judge found the appellants guilty on all accounts and found in -- in effect in an oral opinion that the questions that formed the counts of the indictments did not seek incriminating information and therefore, the privilege against self-incrimination was not available and therefore, they were guilty of contempt of the Ohio Commission. The appellants then appealed to the Court of Appeals for the First District of Ohio, which Court of Appeals reaffirmed the position of the trial court in stating that the questions had not sought incriminating information and therefore, the privilege against self-incrimination was not available. But the Court of Appeals went on to make a further point that under the law, that under which these appellants were indicted, there was a requirement that a direction or order to answer be given the witnesses before the full act of contempt under the law is -- is completed. And the Court of Appeals for the First District in Ohio found that when -- or -- or it found that such an order had impliedly been given when the question had been asked by a member of the Commission itself as distinguished from counsel for the Commission. And so it reversed the convictions as to all counts which involved questions asked by the counsel of the Commission and affirmed as to all questions asked by the member of the Commission. The appeal is then taken to the Supreme Court of Ohio, which, for the first time in the proceedings, held that the Ohio immunity statute applied to these commission hearings. The Ohio immunity statute set out, of course, in -- in the brief. And that since the -- since these witnesses were immune from prosecution as to any matter for which they might testify before the Commission, they therefore had no privilege against self-incrimination and therefore their assertions of the privilege against self-incrimination through the questions asked them by the Commission in which formed the counts of the indictment were acts of contempt and were willful defiances and where therefore -- they were therefore guilty and so --
Felix Frankfurter: May I trouble you to restate that, because of the statute -- the bearing of -- of the -- your statute of immunity to a refusal to answer.
Morse Johnson: Right, Your Honor. Right, Mr. Justice Frankfurter. The Supreme Court held that since the Ohio immunity statute as they found then at that -- in this decision was applicable to these proceedings before this Commission. The witnesses having immunity, therefore, could not assert the privilege of -- their privilege against self-incrimination which is also under the -- also granted under the Ohio Constitution.
Felix Frankfurter: Is your -- is your immunity statute unlike the Louisiana ones?
Morse Johnson: I'm afraid, Your Honor, I'm not familiar with the immunity statute but the --
Felix Frankfurter: Your -- your immunity statute give immunity from prosecution for the subject matter being inquired --
Morse Johnson: It does, Your Honor.
Felix Frankfurter: -- and not merely to deny further use of the evidence?
Morse Johnson: It does, Your Honor. There is no attack here --
Felix Frankfurter: (Voice Overlap) compensatory immunity statute.
Morse Johnson: That's correct, Your Honor. Yes.
William J. Brennan, Jr.: But once you (Inaudible) the action of the Chairman misleading the witnesses into thinking that they might assert the --
Morse Johnson: He -- the -- the Supreme Court decision simply said, “Despite the fact that the Chairman of the Commission had obviously misstated the law,” and I quote directly from the opinion, “nevertheless, these witnesses did not have the privilege and therefore, their assertions of the privilege were willful defiances and contempt of the --
Felix Frankfurter: May I ask some more? If they had the privilege, I thought I understood you had provisions for immunized testimony to make it, is that right?
Morse Johnson: There is an Ohio immunity statute, if I understand --
Felix Frankfurter: And it wasn't -- it wasn't -- they weren't (Inaudible) because they give you immunity.
Morse Johnson: No, no, Your Honor. The immunity statute was never mentioned at the hearings. The Commission assumed that the immunity statute was not applicable.
William J. Brennan, Jr.: Indeed that they had to answer except as the privilege against self-incrimination was available as to the particular questions (Voice Overlap) --
Morse Johnson: That's -- that's correct, Mr. Justice Brennan.
Felix Frankfurter: But didn't -- doesn't -- what is your immunity statute have applied to answer they gave us they've been forced to answer?
Morse Johnson: Your Honor, the -- the problem is -- is set out really in Justice -- Judge Taft's dissent in the Ohio Supreme Court. The theory then -- then and Judge Taft dissented from this decision on the grounds that the immunity statute only applied to committee hearings as distinguished from commission hearings, that it had to be a -- a committee of the legislature which is the word -- is the language of the Ohio immunity statute. And Judge Taft found that the immunity statute did not apply, therefore, he dissented from this.
Felix Frankfurter: It was not a -- wasn't it the legislative body?
Morse Johnson: It was a legislative commission within the -- within the -- as part of the legislature, that's correct.
Felix Frankfurter: And there is difference in Ohio between a committee and a commission?
Morse Johnson: There is a long history of differences between commissions and committees as to other matters, Your Honor, too and --
Felix Frankfurter: And at all events, at all events, somebody before, I take it, in Ohio elsewhere, before an immunity statute can operate somebody in authority on the State, I ask you to answer because I now offer you by law -- by force of law, you will have immunity. That was not done in this case.
Morse Johnson: That was not done in this case.
Felix Frankfurter: So that's -- so that testimony was not compelled in exchange for an immunity.
Morse Johnson: That's -- that is --
Felix Frankfurter: This case comes as though there were no immunity statute in Ohio --
Morse Johnson: Well --
Felix Frankfurter: -- and to this -- as to this transaction.
Morse Johnson: As to this question. Yes, you're correct, Your Honor. And I might just complete the round of these basic facts to state that four judges of the Supreme Court made this finding. One, as I've pointed out, Mr. -- Judge Taft dissented on this committee commission point found that the immunity statute not being available. The privilege was available and that evidently, he -- he concluded that the privilege could be asserted to the questions which formed the counts of the indictment and he dissented. And a second dissent was -- was based on the applicability of the Fifth Amendment to the Constitution and that these witnesses did have, under the circumstances of this case, which I shall detail later, that privilege offered by the Fifth Amendment to the United States Constitution. The third dissent was by Judge Stewart on the very question that we're now discussing, how could these men be in contempt when they merely accepted the admonition of the Chairman of the Commission and asserted the words of their privilege even though the privilege later was determined to be not applicable at least the body that was supposed to be held in contempt or -- or willfully defied by the -- by the witness? This appellant had accepted it.
William J. Brennan, Jr.: Are you raising -- are you raising this question as an independent ground of violation of due process under the Fourteenth Amendment?
Morse Johnson: I am raising it, Your Honor, as an -- as an independent (Voice Overlap) --
William J. Brennan, Jr.: Ground.
Morse Johnson: -- if this -- the operation of the -- of the mandate to the Commission together with the immunity statute could entrap witnesses in these ways that they're unconstitutional at the outset or in the way that the effect (Voice Overlap) --
William J. Brennan, Jr.: That is violation of due process?
Morse Johnson: That's correct, Your Honor. That's correct. An appeal was docketed from this decision in the -- in this Court and almost simultaneously with the Sweezy and Watkins case. The cases this Court vacated the judgments of conviction that -- that had been affirmed in the Supreme Court of Ohio and remanded the -- the case to the Supreme Court of Ohio for reconsideration in the light of the Watkins and Sweezy cases. This reconsideration was had on oral argument in brief and resulted in a very brief per curiam opinion by the Supreme Court of Ohio which it merely stated the conclusion that it adhere to its former judgments and it found no applicability or relevance in the Sweezy and Watkins case. Again, there were only four judges in the Ohio Supreme Court signing that opinion, Judge Taft again dissented and two judges who had sat on the case did not make their positions known.
Earl Warren: You mean they did not concur or dissent?
Morse Johnson: They did not concur nor dissent, Your Honor, although they sat and heard the case.
Speaker: What does it mean (Inaudible)
Morse Johnson: I don't think it means anything, Your Honor. I don't think that it gives -- we -- we raise the point on our application for rehearing that we're entitled to have the opinions of all judges who sat on the case but we found no -- no authorities in the -- in the court of Ohio.
William O. Douglas: But that's -- that's not peculiar to this case with judges of the Supreme Court of Ohio to just not vote with some cases that they hear, isn't that true?
Morse Johnson: Your Honor, I'd be afraid to answer that question not having (Voice Overlap) --
William O. Douglas: I thought I'd -- I thought I'd known of other instances. Maybe -- maybe I'm confusing it with something else.
William J. Brennan, Jr.: Don't you have this peculiar practice of -- of -- perhaps I shouldn't say peculiar, practice of (Inaudible) rather than opinions or something in Ohio?
Morse Johnson: Well, we had noted and -- and you get opinion.
Felix Frankfurter: Syllabus (Voice Overlap) --
William J. Brennan, Jr.: Syllabus.
Morse Johnson: Syllabus. It's the same system as -- as in this -- prevail on this Court.
Felix Frankfurter: No.
William J. Brennan, Jr.: No.
Morse Johnson: Oh, you mean the judges -- I don't --
Felix Frankfurter: Does the syllabus determine what the Court had declared?
Morse Johnson: Oh, exactly, I -- I understand. I'm lost, Your Honor. Yes, the syllabus becomes the ruling, correct. I -- I'm sorry.
William J. Brennan, Jr.: Well, I don't understand how -- what you mean when you said you thought you were entitled to heavy opinions.
Morse Johnson: Well, we -- we thought we're entitled to have whether or not the judges who sat on the case felt that the -- that the Sweezy and Watkins case did or did not apply to reverse the convictions of contempt which -- which were being appealed at that time.
William J. Brennan, Jr.: What you had was what?
Morse Johnson: Pardon me.
William J. Brennan, Jr.: What you had was just a short per curiam --
Morse Johnson: Per curiam signed by only four Judges.
William J. Brennan, Jr.: Oh.
Morse Johnson: And seven had sat and one dissented, so two did not make their opinion. Although I'd -- I'd simply point that as Your Honor, it's really not basic to the -- to the main issues in this case. Now, these witnesses, when they were appellants, when they were subpoenaed, had only before them the mandate to the Commission which gave the Commission the authority to make the investigation. Certainly, if the Sweezy and Watkins mandates are indiscriminate and vague, this one is all -- this one is completely and totally indiscriminate and vague. I simply sight one sentence and I might state at this time that none of the -- not one of these witnesses knew at the time of the hearings what part of the authority or what purpose of the -- the Commission had -- had called them before it for. The -- the main sentence that I think shows the only inclusive sweeping authority that the Commission had which made it absolutely impossible for any witness no matter how well-advised by counsel to determine whether or not the matter was pertinent to any inquiry that the Commission might be authorized to make was. The Commission was -- was authorized to investigate all facts concerning persons whose activities might adversely, might adversely affect the functioning of any agency of the State or Federal Government or the industrial potential of the State. In other words, it would appear and I -- it is submitted that under that kind of authority might adversely affect all facts concerning persons whose activities might adversely affect any inquiry was -- was allowed. Anything was pertinent and all things being pertinent, it was impossible and utterly impossible for any witness to determine whether or not the Commission had the authority or have been given the authority to ask the questions they were ultimately asked. There was no way to judge pertinent. The witness becomes helpless. I might say that throughout the hearings and certainly at the opening statement of the Chairman of the Commission, there was no further delineation, no further clarification as to why these witnesses before this Commission, for the purposes of this inquiry. The -- the Chairman of the Commission only open by showing an extreme hostility to the witnesses pointing out that they have practice fraud and deception and said that they feared exposure of un-American activities conducted in secret. This, Your Honors, was the only delineation, if you please, made by the Commission throughout the hearings and certainly at the outset which the witnesses had to determine whether or not the Commission had the authority to subpoena them before it and whether the Commission had authority to ask the questions it ultimately asked. I might point out that the very first witness, the appellant Raley before he'd even asserted his privilege against self-incrimination protested. This is in the record on page 80 and 81, the pertinence or the purpose of the inquiry. What was the purpose of this questioning? And the answer was only this was if -- within the scope of our inquiry. There was no further guidance given to the appellant Raley and -- and the other witnesses were present at the time when he first opened up the question of the pertinent -- of the -- of the inquiry and the pertinence of a particular question. Since the grant of authority is so broad, it permits and encourages the kind of questioning and the kind of proceedings that the record reflects took place on October the 28th, 1952. I think that nowhere do we find the attitudes that unfortunately begin to prevail when you allow state legislative committees or any other kind of committee's unlimited latitude to investigate into any area that they might investigate into. When we take one of the questions that was asked of one of the appellant and that is the fourth question of the fourth count of the indictment for appellant ground, he was asked and indicted and convicted for not answering this question, “Where you active in 1947 in the election in the City of Cincinnati in supporting any candidate or any issue on the ballot in that election?” That -- that -- the conviction for reducing to answer that question now is appealed from and is before this Court.
Felix Frankfurter: I ought to know but I don't, I'm sorry. Is your -- Raley is it?
Morse Johnson: Raley is one of the appellants.
Felix Frankfurter: Yes. These witnesses, did they stand mute from the beginning?
Morse Johnson: They, Your Honor, answered --
Felix Frankfurter: (Voice Overlap) all -- all inquiry -- all questioning?
Morse Johnson: They answered a few questions of -- appellant Raley answered quite a number of questions up until the point they've got to associations and -- and who he knew and the like.
Earl Warren: What kind of questions --
Morse Johnson: Appellants --
Earl Warren: -- did he answer? What kind of question did he answer?
Morse Johnson: Where he'd worked, what he had done, what he'd done in the war, what union -- what union he belong to. The basic background sort of personal questions up until the point that they involved activities, associations, protest, speeches, passing of leaflets, who he knew and who is associated with.
Felix Frankfurter: He did not challenge the structure and authority of the Commission is -- is entitled, did he, to begin with?
Morse Johnson: He wanted to make an opening statement, Your Honor --
Felix Frankfurter: Did he make?
Morse Johnson: -- which -- which he was allowed to make after the hearings were through in which he challenged the whole authority of the Commission to --
Felix Frankfurter: There was -- but before he got to that, there was a question for which the Chief Justice, before the bench (Inaudible) inquire what you answered, he did answer some question.
Morse Johnson: He did answer some question, sir.
Felix Frankfurter: And what about the other --
Morse Johnson: Now, appellant Stern, Your Honor, the second question, he refused to answer and it was -- and -- one of the questions in the indictment, I want to get it exactly, “Where do you reside, Mr. Stern, previously?” And then he answered some more questions, a considerable history as to where he worked in Phoenix, Arizona and so forth and so on. Then he began to stop at the same point where appellant Raley stop -- start. I should point out that appellant Stern, we make quite an issue of this in front of both the trial court and the Court of Appeals because at that time, the question was whether or not the question had been incriminating. And later on in the hearings, appellant Stern has asked the question, “Did Frank Hashmall come and reside with you?” Now, Frank Hashmall was the best known communist, if Your Honor please, the self-identified member of the Communist Party in the southern part of Ohio and we urged at that time that the reason -- because of the length in the chain theory of -- of the privilege against self-incrimination that he refused to answer. But he answered many other basic questions along --
Felix Frankfurter: Did Brown find him?
Morse Johnson: Brown answered up until a point, Your Honor.
Felix Frankfurter: So that as to these -- as to these petitioners, it is not true that they, at the very threshold, shut off all inquiry. It is not --
Morse Johnson: It is not true that they --
Felix Frankfurter: All right.
Morse Johnson: -- shut off all inquiry. That -- that is correct, Your Honor. The -- the -- one of the questions asked in the indictment was the question of whether Mr. Stern, appellants Stern, and to what extent he had worked in the progressive party. And he now stands indicted and convicted for contempt for refusing to answer that question.
William J. Brennan, Jr.: Incidentally, has any of the questions to which they were indicted, if he will answer was to indict the record, did they (Inaudible) privilege against self-incrimination?
Morse Johnson: To each of the questions that they were indicted to. Each of them, there is not one that they did not assert that --
William J. Brennan, Jr.: Were they all present when the Chairman told them that they were free to assert privilege?
Morse Johnson: The record does not show that, Your Honor, but each appellant during his inquiry was assured by the Chairman that he had the privilege against self-incrimination. I've cited that for the record, Your Honor.
Charles E. Whittaker: (Inaudible)
Morse Johnson: Well, Your Honor, he made -- I would suppose 20 to 30 statements in the record in -- in connection with the privilege. He may at on time have said that. He -- he -- at other time said, “We will not press for answers if they're incriminating.” He -- he had at other time said that he is -- he -- he agreed that this question would be incriminating and therefore no answer would be necessary, the question whether another kind of question would be. There are number of statements which not only directly assert that the witnesses were granted the privilege but also imply it by the -- by the very discussion, the colloquy that it did went on between the witnesses and -- and the Chairman.
William J. Brennan, Jr.: Well, is this a fair sample that appears in the Supreme Court's opinion at page 548, the Chairman, “Mrs. Morgan, I should like to advise you, under the Fifth Amendment, you are permitted to refuse to answer questions that might tend to incriminate you.” Mrs. Morgan, “Yes.” The Chairman, “But you are not committed to refuse to answer questions simply for your own convenience. Counsel may proceed.”
Morse Johnson: I would say that that was a fair statement, Your Honor. I don't know that -- exactly that explicitly it was made in each of these instances but the Supreme Court of Ohio found and it's -- it's a part of this case that the Chairman of the Commission had obviously misstated the law and had granted these witnesses the privilege.
William J. Brennan, Jr.: Well, that's just what the Supreme Court is on the sale or the Chairman obviously misstated the law.
Morse Johnson: That's correct, Your Honor. Correct. In addition a --
Charles E. Whittaker: (Inaudible) I'm not quite sure what was (Inaudible)
Morse Johnson: In only one instance in the question that formed a count from the -- from the counsel indictment. There were many questions asked. There's never been any understanding as to why some of the questions didn't form parts of the counts of the indictment. There were only two in Stern, four in Brown and, I think, 16 or 18 in -- in Raley. But in none of the questions which -- which became -- not one of the questions which became a count in the indictment. Was there a clear and certain direction to answer after the privilege have been inserted except for one, excuse me for saying it that way, Your Honor, the very first question to appellant Stern, “Where do you reside, Mr. Stern?” The only time the Commission ever engaged in what we're now talking about in turn and -- and directly that ordered the -- the witness stands to the question was for that question. All the rest of the -- all the rest of the questions, the answers, their assertions of the privilege were accepted by the -- by the Commission. I think that this question of -- of offering the privilege and not asserting -- not -- not insisting on an answer becomes even more relevant than we recognized that the witnesses or the appellants in this case were indicted under what is known as the judicial contempt's statute of the -- of the Ohio Code. Unlike the appellant in the companion case here who was incited under the legislative contempt's Section, these witnesses were indicted under the judicial contempt section. That judicial contempt section had been interpreted and held by the courts of Ohio and been -- been commented upon and I have so stated in my reply brief as to require a direction to answer in order for the -- for the contempt to be complete. So, we have witnesses before us -- we have witnesses before the Commission who were assured and admonished that they could have their privilege against self-incrimination, use the word asserting the privilege against self-incrimination were not countermanded, were not directed to -- to order an answer and under no circumstances could any lawyer have advised a witness at that time. Under the laws of Ohio -- well, certainly under the contempt law, judicial contempt section, and certainly under any interpretation of what is fair in -- in legislative procedures as far as offering a man the privilege and then having it later rejected by the Supreme Court. No lawyer could have advised and no witness could have concluded that by asserting, as these witnesses did, their privileges to these questions that they were then to be held in contempt of the -- of the Commission and -- and convicted for the same and sentenced to fines and imprisonment. I think that I should point out further that the whole nature of these hearings which becomes extremely important not only to these witnesses and why they stand convicted but to the due process demands of the Fourteenth Amendment. Over 90% of the questions asked to these witnesses were of the “is it not a fact?” “Is it not a fact that you committed a crime or were arrested in Des Moines, Iowa? Is it not a fact that you were -- you were again arrested in Des Moines, Iowa? Is it not a fact that you falsely and fraudulently signed this affidavit? Is it not a fact that you did this or did that?” There is no question but that a substantial majority will, over 90% of the questions, sought information which the Commission already assumed it had. This is most particularly noted and I think the hearings are characterized by this question. And I think this is what goes to the vice of allowing commissions to have unlimited authority to ask questions in any area of inquiry that they might want to ask questions in. Appellant Brown, one of the witnesses, was asked the question about his attendant at a meeting and he answered in some way. I don't know whether he asserted the privilege against self-incrimination but he then stated, “Do you know I was at that meeting? Have you proved that I was at that meeting?” The answer of the Commission Chairman was, “The proof will be forthcoming the moment you deny it under oath.” Now, these --
Hugo L. Black: What page -- what page is that?
Morse Johnson: Your Honor, that's on page --
Hugo L. Black: (Voice Overlap) --
Morse Johnson: -- record page 155 towards the bottom. These, it is submitted, Your Honors, show that the type of investigation that was being conducted here was not an investigation, that it was an inquisition. It was an attempt to entrap witnesses towards whom some of the members or all the members of the Commission felt a certain hostility and a certain adversity. It was -- it was an attempt to expose to hostile light witnesses before the Commission. I see, Your Honor, that I have expended as much time as I would like to at this point and I would like to reserve any further time I might have until after the State concludes.
Earl Warren: You may.
Morse Johnson: I hate to do it to the State at this time but --
Earl Warren: That's all right.
William J. Brennan, Jr.: What was the question at 155 you referred us to?
Morse Johnson: Record 155.
William J. Brennan, Jr.: What's the question?
Morse Johnson: Down towards the bottom --
William J. Brennan, Jr.: The proof will be forthcoming?
Morse Johnson: Yes. Do you have proof?
William J. Brennan, Jr.: (Voice Overlap) --
Morse Johnson: The proof will be forthcoming from the moment you deny under oath.
William J. Brennan, Jr.: Yes, I know.
Morse Johnson: Thank you.
Earl Warren: Very well. Mr. Hover.
C. Watson Hover: Mr. Chief Justice, Members of the Court. I would like, if I may, to direct my remarks to certain portions of the case for the State reserving for discussion by my associate Mr. Rubin, questions relating to the relationship of these cases to Watkins and Sweezy and also questions relating to the Ohio immunity statute. Why --
William J. Brennan, Jr.: Are you going to deal with the Chairman's instructions or will your --
C. Watson Hover: I would like to deal with that, Mr. --
William J. Brennan, Jr.: Yes.
C. Watson Hover: -- Justice (Inaudible) if I may. I am reading from the record where the -- the trial record this is where the Chairman of the Commission is being crossed-examined by defense counsel.
Earl Warren: What page, Mr. --
C. Watson Hover: I am reading from pages 39 and 40 of the transcript of the record before this Court. Defense counsel to the Chairman of the Commission, “You recognized, do you not, the defendants have the right to assert the privilege of the Fifth Amendment in connection with questions which might tend to incriminate them? Do you call -- recall that?” Answer, “It was the policy of the Commission not to press questions which we felt would be of an incriminating nature. For instance, whenever a witness was asked a question,” I believe every witness before the Commission was asked the question, “Are you or are you not a member of the Communist Party? And so forth. And if the witness refused to answer the question, we did not press it.” Frequently, I made statements which indicated the policy of the Commission whether it was to ask the witnesses or not, I do not know, possibly less than that. The statement was, “We will not require you to answer questions which may incriminate yourself but we want it clearly understood that you may not refuse to answer questions on the ground that it would incriminate someone else.”
Hugo L. Black: What page is that?
C. Watson Hover: I'm reading from page 39 to 40 of --
William J. Brennan, Jr.: Well, now, this, of course, is not part --
C. Watson Hover: -- this record.
William J. Brennan, Jr.: -- of the -- this is not part hearing record. This is part of the trial record discloses.
C. Watson Hover: This is the trial -- yes.
William J. Brennan, Jr.: And this is his recollection of what he did, isn't it?
C. Watson Hover: That is correct. I find no other --
William J. Brennan, Jr.: Which may or -- I haven't examined the actual hearing record but does what he said here as to the question or the answer he gave the witness, is that born out as to -- in the actual hearing record?
C. Watson Hover: There is no reference to it in the hearing record of which I am immediately aware both from this and from the past proceeding. There are several references not in relationship to the specific counts for which these defendants were indicted but in the general testimony of those same defendants wherein the Commission very obviously did not press for a reply of questions which, for lack of any other indication, I must assume the Commission felt might conceivably be incriminating by a --a view of the circumstances surrounding the witness, the known circumstances and a view of the possible directness of the question itself. However, that does not apply to any of the questions which were made counts in these three indictments. There, there was a number of the counts, 16 in all to begin with, against Mr. Raley which were determined and were reversed by the Court of Appeals on a complete appellate review of the trial proceedings and all that had gone before it where the Court of Appeals dismissed the charges as to those counts in which there had not been an express or an obvious intent on the part of the Committee Chairman or a member of the Committee to receive an answer to the question asked. Now, several places in the record, that situation develops in this fashion, the witnesses asked the question, he claims the Fifth Amendment and says that he wants to have something to say about it. The Chairman then says, “Well, how would that tend to -- will you explain how that might tend to incriminate you?” “I claim the Fifth Amendment.” “Is there anything in that question which might tend to incriminate you?” That is one process. Another process that is repeated in regard to some of these counts is this.
Earl Warren: But was he then directed to answer that question?
C. Watson Hover: Well, I -- I would agree with Mr. Johnson and possibly very closely to that. I say there are two instances in which there is obviously a direction to answer. Now, again, that direction to answer does not take the -- the formal regular law or routine that this Court has observed is -- is not necessary on the part of the witness claiming. We suggest the same ritual is not necessary on the part of a chairman or a judicial or legislative officer ordering.
Earl Warren: Where will we find that --
C. Watson Hover: At several places you will find the --
Earl Warren: -- where will we find that in the order?
C. Watson Hover: The reference repeated three different times, “Will you answer the question?” The -- the Chairman. Now, at -- at no time will this Chairman --
Earl Warren: Yes. (Voice Overlap) --
C. Watson Hover: -- in this record say “I order you to answer that question.” We -- we do not have such a thing.
Speaker: Could you --
C. Watson Hover: But --
Speaker: -- point up an example of --
C. Watson Hover: Yes.
Speaker: -- what you are talking?
C. Watson Hover: In the -- we cite several places of that major in the appellee's brief. I am reading on page 14 of the appellant's brief which in turn quotes page -- quotes page 144 of the transcript of the record.
Earl Warren: 144.
C. Watson Hover: “The Chair request that you answer the questions put by counsel.” The witness, “I will answer your question. I might add that,” so and so and so. The Chairman, “Before adding anything will you answer the question?” The witness, “I will answer the question.” The Chairman, “After you answer the question you may add anything you wish.” The witness, “I decline to answer under the Fifth Amendment, I might add.” Chairman, “You have not answered the question so we will not permit you to answer -- to add anything. Counsel, will you ask the next question?” Another example of it --
Earl Warren: That's when you rely on as a direction?
C. Watson Hover: Well, that is one where we feel there is a -- a very definite intention expressed on the part of the Chairman speaking for the Commission.
Earl Warren: Yes.
C. Watson Hover: But the Commission does expect an answer and that the witness is possibly expecting to answer until he is pressed three times, “Will you answer the question?” Then I take the Fifth Amendment. Now, the Chairman, at another point, I am reading now from the transcript of the record itself, which is before the Court, page 99. Chairman Renner, “Mr. Raley, the Commission would like to have you give an answer to that question. I will ask the question be repeated. Let the stenotypist repeat the question.” The question then is repeated. The Chairman adds to it, “We would like you to -- to know whether or not you recall the interview. You may say yes or no. Do you recall the interview or don't you recall it? If you recall it and we ask you about your recollection, you may claim your -- your privilege to claim your rights under the Constitution, but it is our opinion, it is my opinion that you have no constitutional right to refuse to answer the question whether or not you recall an interview”. Then the witnesses' own counsel, who was at his side, intervenes. The witness, “Mr. Chairman, if you will forgive the witness for taking his legal advice from me rather than from the Committee.” Chairman, “You may advise your witness what is right, sir.” Attorney, “I certainly will.” Chairman, “I am not aware that you advised him not to give an answer.” Attorney, “I had not. I didn't advise him to give any answer. I pointed out that you were telling him what the law is and with all due respect that is my function.” The -- they say it is never -- the -- the ritual never in this record with this Chairman and these witnesses. And I -- I'm speaking of Raley, Stern and Brown only because those are the ones which I have direct and personal familiarity. I have for seven years. There is never a direct ritual on the part of the Chairman to these witnesses to answer questions except the -- the one which I specifically read. Mr. Rubin points out that there is another one which I -- page 132 of the record. Chairman Renner, “The witness will -- the Chair will request that the witness answer the question.” The witness, “I have answered the question.” This is in regard to Mr. Stern again. Counsel for the Commission, “Mr. Chairman, I ask the witness be ordered and directed to answer the question.” Chairman, “The witness -- the Chairman directs the witness to answer the question relating to his address,” which incidentally is one of the specific subjects of an indictment count here, “the address of his residence in Cincinnati.” The witness, “The same answer.” That -- that --
Hugo L. Black: May I ask you -- may I ask you about the first question that you say he still didn't answer? (Voice Overlap) --
C. Watson Hover: That's the question that is --
Hugo L. Black: Did that --
C. Watson Hover: -- on the indictment.
Hugo L. Black: Did that question --
C. Watson Hover: “Mr. Stern, where do you reside?”
Hugo L. Black: Page 143 and 144, that -- that was the first in which you referred, wasn't it? What was that -- that --
C. Watson Hover: No, no, we're -- we're not at the same place, sir, Mr. Justice Black.
Hugo L. Black: No you -- that was the first one I might get as you said it.
C. Watson Hover: That is --
Hugo L. Black: (Voice Overlap) question I might add and (Inaudible) Committee or acting program. Will you answer the question? So in page 44. What was that question?
C. Watson Hover: No, I am reading in the record from -- from page 132.
Hugo L. Black: No, I was talking about your -- the first part of the record you read.
C. Watson Hover: Oh, oh.
Hugo L. Black: Where you gave it is the illustration of this one as I understood, why he told him to answer the question. I just don't know what question. The best I could make out he's asking to confess he committed perjury.
C. Watson Hover: The witness -- the portion I questioned -- I -- I quoted in the appellant's -- appellee's brief from page 144 of the record is half way down. “The Chair requests that you answer the question put by counsel.”
Hugo L. Black: Before that. What -- what was the question?
C. Watson Hover: “Mr. Stern, at the present time, you are required to tell the truth under the penalty of charges of perjury.”
Hugo L. Black: But what was the question that they were insisting to be answered? Back on page 143 or not? “I asked you, as a matter of fact, that on May 28th, when you falsely enforced him to sign that affidavit before (Inaudible) you are in fact the member of the Communist Party.” Is that the question?
C. Watson Hover: Well, the -- the next question, "Will you deny here and now?”
Hugo L. Black: What? Deny what?
C. Watson Hover: That you are a member of the Communist, that you signed a non-communist affidavit at a time you were active in the Communist Party.
Hugo L. Black: Was there anything at all in connection with what he said on 144 that -- Will you answer the question? Was there anything to any part of the question been referred to trying to get him to say that he had committed perjury?
C. Watson Hover: The basic question is whether or not he signed a non-communist affidavit at the time he was an active member of the Communist Party.
Hugo L. Black: Is that perjury? Would that be perjury under the laws of Ohio?
C. Watson Hover: We have a perjury statute in Ohio.
Hugo L. Black: Would that come under it?
C. Watson Hover: Grossly provided other elements were present such as what happened to be the truth of two possibly contradictory --
Hugo L. Black: Well --
C. Watson Hover: -- statements under oath. It -- it would conceivably be perjury. I -- I --
Hugo L. Black: But could it -- could it conceivably not be perjury?
C. Watson Hover: Oh, yes, it could conceivably not be perjury for a hundred reasons. The oath might have been administered by an officer not having authority to administer oath. There might be a dozen technical --
Hugo L. Black: Did you ask him --
C. Watson Hover: -- objections to it.
Hugo L. Black: -- did he ask him anything about such exception?
C. Watson Hover: Sir?
Hugo L. Black: Did the Committee Chairman ask permission, Chairman asked him of anything about those possible --
C. Watson Hover: I doubt --
Hugo L. Black: -- hundred exceptions?
C. Watson Hover: I doubt if the witness Stern would know about those possible hundred exceptions.
Hugo L. Black: Would the Chairman of the Commission?
C. Watson Hover: A prosecuting attorney would know about the possibility.
Earl Warren: Well, could -- assuming that the Chairman was correct in his facts that this man falsely signed a non-communist affidavit and at the time was an active member of the Communist Party, can you conceive of that not being incriminating if he -- if he answered yes?
C. Watson Hover: I can see where he would run a risk of incriminating himself definitely. He was not, however, indicted for that purpose. He was not indicted for that answer or for that refusal. He was indicted for a refusal which it has been the view of the State. He was not justified in refusing on the ground of self-incrimination because there's nothing at that point or about the question (Voice Overlap) --
William J. Brennan, Jr.: Although the Chairman told him that he was. Chairman told him that he was and the --
C. Watson Hover: The -- the --
William J. Brennan, Jr.: -- Supreme Court finally says, as I read the Supreme Court's opinion, that no, that's not the law and the Chairman was wrong in anyway. This fellow knew that the Chairman was wrong. That's the effect what you spoke of (Voice Overlap) --
C. Watson Hover: I -- I don't so understand it, Mr. Justice Brennan. I -- the -- the Chairman makes the point that we will not require you to answer questions which it seems may incriminate you.
Earl Warren: And that -- yet this is one question that you say he directed him to sign.
C. Watson Hover: And for which he was not --
Earl Warren: Put to answer.
C. Watson Hover: -- indicted, if your -- if you please, Mr. Chief Justice.
Earl Warren: I beg you pardon?
C. Watson Hover: And for which he was not indicted and does not stand here accused.
Hugo L. Black: That is not relevant.
Earl Warren: Oh, I thought you were telling us of instances where he was indicted and where he have been directed by the Chairman to (Voice Overlap) --
C. Watson Hover: Oh, I -- I'm telling -- I'm telling of instances in which the Chair did, from time to time, direct answers.
Earl Warren: Yes, and you say that those were thrown out by the Court. They --
C. Watson Hover: No, they -- no, just the opposite. The ones that were thrown out were those in which he -- the witnesses refused to answer questions which were put to him only by Committee's counsel. Those were the -- those were the counts which were thrown out in the Court of Appeals.
Earl Warren: I see.
C. Watson Hover: (Inaudible) distinction between Chairman question and lawyer question.
Earl Warren: Oh, yes, all right. We'll adjourn now.