[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[Â§ 7. Intent of Witness]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2354-2356]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 7. --Intent of Witness

    A witness cannot be convicted for refusal to testify or produce 
documents unless his refusal is willful,(15) that is, a 
deliberate and intentional act,(16) which need not, however, 
involve moral turpitude (17) or a bad or evil purpose or 
motive.(18)
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15. 2 USC Sec. 192; Quinn v United States, 349 U.S. 155, 165 (1955).
16. United States v Bryan, 339 U.S. 323 (1950).
17. Braden v United States, 365 U.S. 431 (1961).
18. Wheeldin v United States, 283 F2d 535 (9th Cir. 1960); cert. denied 
        366 U.S. 958 (1961); Fields v United States, 164 F2d 97, 100 
        (D.C. Cir. 1947). See Moreland, Allen B., Congressional 
        Investigations and Private Persons, 40 So. Cal. L. Rev. 189, 
        239-242, for a discussion of willfulness.
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    Although a mistake of fact may in some cases justify a refusal to 
submit testimony or docu

[[Page 2355]]

ments,(19) a mistake of law, if deliberate and intentional, 
will not excuse such a refusal (20) even if based on advice 
of counsel.(1)
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19. Townsend v United States, 95 F2d 352, 358 (D.C. Cir. 1938).
20. Watkins v United States, 354 U.S. 178, 208 (1957); Townsend v 
        United States, 95 F2d 352, 358 (D.C. Cir. 1938).
 1. Sinclair v United States, 279 U.S. 263, 299 (1929).
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    In determining whether orders from a superior would justify a 
refusal to comply with a subpena, or whether such refusal constitutes 
willful behavior, courts have distinguished between a ``command to 
assume a position,'' which would shield the subordinate, and a mere 
ratification of a subordinate's ``continuous position of 
noncompliance,'' which would not.(2) In such a case, the 
validity of a defense that a person acted on orders of a superior would 
depend on whether the superior's order preceded the subordinate's 
refusal or the converse.
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 2. United States v Tobin, 195 F Supp 588, 615 (D.D.C. 1961); reversed 
        on other grounds, 306 F2d 270 (D.C. Cir. 1962); cert. denied 
        371 U.S. 902 (1962).
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    The element of willfulness has been discussed in two contexts, 
refusal to produce papers and refusal to answer questions. The Supreme 
Court held in one case that the government established a prima facie 
case of willful noncompliance by introducing evidence that the witness 
had been validly served with a lawful subpena duces tecum to produce 
organizational records under her custody and control and that she had 
intentionally refused to present them on the appointed 
day.(3) In a later case, the court found that a 
subcommittee's reasonable basis for believing that a witness could 
produce certain records, coupled with evidence of his failure to 
suggest his inability to produce them, supported an inference that he 
could have produced them and shifted the burden to the witness to 
explain or justify his refusal.(4)
    It has been further held that:
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 3. United States v Bryan, 339 U.S. 323, 330 (1950).
 4. McPhaul v United States, 364 U.S. 372, 379 (1960).
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        . . . anything short of a clear-cut default on the part of the 
    witness will not sustain a conviction for contempt of Congress. . . 
    . The witness is not required to enter into a guessing game when 
    called upon to appear before a committee. The burden is upon the 
    presiding officer to make clear the directions of the committee, to 
    consider any reasonable explanations given by the witness, and then 
    rule on the witness' response.(5)

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 5. United States v Kamp, 102 F Supp 757, 759, 760 (D.D.C. 1952).
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[[Page 2356]]

A court of appeals, adopting the above reasoning, established a 
procedure which requires a committee to propound a question, hear the 
refusal, rule that the refusal to answer is not satisfactory, and then, 
in time to allow an opportunity for answering, repeat the question to 
enable the witness either to purge himself and answer or stand on his 
original refusal to answer.(6) A contempt conviction, it has 
been said, cannot stand if a committee leaves a witness to speculate 
about the risk of possible prosecution and does not give him a clear 
choice between standing on his objection or complying with a committee 
ruling.(7) However, it has been further indicated that a 
conclusive presumption of intent to violate the statute might attach to 
a refusal even where that refusal was made without a statement at the 
time of the reason therefor.(8)
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 6. Quinn v United States, 203 F2d 20, 33 (D.C. Cir. 1952), aff'd., 349 
        U.S. 155 (1955).
 7. Bart v United States, 349 U.S. 219, 223 (1955); Emspak v United 
        States, 349 U.S. 190, 202 (1955).
 8. Quinn v United States, 203 F2d 20, 33 (D.C. Cir. 1952), aff'd., 349 
        U.S. 155 (1955).
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