[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[Â§ 8. Procedural Regularity of Hearings]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2356-2358]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 8. --Procedural Regularity of Hearings

    A committee's failure to observe House rules or its own committee 
rules has been held to constitute a ground to reverse convictions for 
contempt or perjury. Whether a committee has complied with such rules 
became easier to ascertain after the House, on Mar. 23, 1955, adopted 
the Code of Fair Procedures which established certain procedural rights 
for witnesses and provided that ``the Rules of the House are the rules 
of its committees and subcommittees so far as applicable. . . .'' 
(9)
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 9. The quotation is taken from Rule XI clause 27(a), House Rules and 
        Manual Sec. 735 (1973). See Sec. 13.1, infra, for a discussion 
        of adoption of the Code of Fair Procedures. See also Sec. 15, 
        infra, dealing with a related topic, the procedure for 
        determining whether information may tend to defame, degrade, or 
        incriminate a person.
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    As an example of the requirement of compliance with procedural 
rules, a witness' conviction under a District of Columbia statute 
(10) which defined perjury as making false statements before 
a competent tribunal was reversed by the Supreme Court because the 
government at trial did not adduce evidence showing that a quorum of a 
committee was present when the statements alleged to be false were 
made.(11)

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10. 22 D.C.C. 2501 (Mar. 3, 1901).
11. Christoffel v United States, 338 U.S. 84 (1949).
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[[Page 2357]]

But presence of a quorum of the committee at the time of the return of 
the subpena was held not to be necessary for conviction under the 
contempt statute, 2 USC Sec. 192, for refusal to produce organizational 
records despite the fact that the witness could have demanded 
attendance of a quorum and refused to produce documents until a quorum 
appeared.(12)

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12. United States v Bryan, 339 U. S. 323 (1950).
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    A witness' objection or failure to object may affect the validity 
of an argument at trial. Although the witness' failure to object to the 
absence of a quorum was considered and did not waive his right to raise 
that objection at trial in Christoffel v United States,(13) 
the witness' failure to make the objection at the hearing when the 
situation could have been remedied was considered a reason to reject 
this contention at trial in United States v Bryan.(14)
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13. See 338 U.S. 84, 88 (1949), for the statement of the majority that, 
        ``In a criminal case affecting the rights of one not a member, 
        the occasion of trial is an appropriate one for petitioner to 
        raise the question.''
14. See 339 U.S. 323, 333 (1950) in which the majority stated:
            ``The defect in the composition of the committee, if any, 
        was one which could easily have been remedied. But the 
        committee was not informed until the trial, two years after the 
        refusal to produce the records, that respondent sought to 
        excuse her noncompliance on the ground that a quorum of the 
        committee had not been present. . . . To deny the committee the 
        opportunity to consider the objection or remedy it is in itself 
        a contempt of its authority and an obstruction of its 
        processes.''
            The different treatment of the same issue, timeliness of 
        the objection, was explained by the majority as a consequence 
        of the fact that the contempt statute considered in Bryan, 2 
        USC Sec. 192, did not require a ``competent tribunal'' but the 
        D.C. perjury statute reviewed in Christoffel did. This 
        distinction was criticized by Mr. Justice Jackson who commented 
        in a concurring opinion, ``. . . I do not see how we can say 
        that what was timely for Christoffel is too late for Bryan.'' 
        (Bryan, at 344.)
            See also, United States v Fleischman, 339 U.S. 349 (1950); 
        reh. denied, 339 U.S. 991 (1950), for another contempt case 
        which held that the witness had waived the objection.
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    In another contempt case, a court of appeals following Bryan held 
that a defendant who had been convicted of failure to answer questions 
before a congressional committee could not, on appeal, contend that a 
one-man subcommittee was not valid, inasmuch as he had failed to make 
the objection at the congressional hearing.(15)
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15. Emspak v United States, 203 F2d 54 (D.C. Cir. 1952); reversed on 
        other grounds, 349 U.S. 190 (1955).
            Both the Bryan and Emspak cases predated Rule XI, clause 
        28(h), which provides that, ``Each committee may fix the number 
        of its members to constitute a quorum for taking testimony and 
        receiving evidence, which shall be not less than two.'' House 
        Rules and Manual Sec. 735(h) (1973); this clause, numbered 
        27(h) at the commencement of the 93d Congress 1st Session, was 
        numbered 28(h) at the end of that session. See Sec. 13.3, 
        infra, for a discussion of adoption of this rule.

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[[Page 2358]]

    A subcommittee's initiation of an investigation of Communist Party 
activities in labor, without obtaining authorization from a majority of 
the full committee as required by committee rule, was held in another 
case to constitute a ground to reverse a contempt conviction for 
refusal to answer questions.(16)
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16. Gojack v United States, 384 U.S. 702 (1966).
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