[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[Â§ 9. Rights of Witnesses Under the Constitution - Fifth Amendment]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2358-2363]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 9. Rights of Witnesses Under the Constitution--Fifth Amendment

    In addition to meeting the requirements imposed by the contempt 
statute, discussed in preceding sections, congressional investigators 
must observe limits imposed by the Bill of Rights, particularly the 
first,(17) fourth,(18) and fifth amendments:
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17. See Sec. 10, infra.
18. See Sec. 11, infra.
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        The Bill of Rights is applicable to investigations as to all 
    forms of governmental action. Witnesses cannot be compelled to give 
    evidence against themselves. They cannot be subjected to 
    unreasonable search and seizure. Nor can the First Amendment 
    freedoms of speech, press, religion, or political belief and 
    association be abridged.(19)
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19. Watkins v United States, 354 U.S. 178, 188 (1957). See also Liacos, 
        Rights of Witnesses before Congressional Committees, 33 B.U.L. 
        Rev. 337 (1953).
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    The most extensive litigation has involved the fifth amendment. 
Availability of the privilege against self-incrimination in 
congressional investigations was established in 1879 when the House 
adopted a Judiciary Committee report stating that the fifth amendment 
provision, ``No person . . . shall be compelled in any criminal case to 
be a witness against himself. . . .'' could be invoked by a person in 
an investigation initiated with a view to impeach him, notwithstanding 
the fact that a congressional investigation is not a ``criminal case.'' 
(20) Because the government

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20. See 3 Hinds' Precedents Sec. Sec. 1699 and 2514, for discussions of 
        the refusal of George C. Seward, former Counsel General at 
        Shanghai, China, to testify or produce subpenaed materials. See 
        also, Moreland, Allen B., Congressional Investigations and 
        Private Persons, 40 So. Cal. L. Rev. 189, 253-260 (1967); 
        Constitution of the United States of America: Analysis and 
        Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., pp. 91, 
        92 (1972); and Fisk, J., Compulsory Testimony of the 
        Congressional Witness and the Fifth Amendment, 15 Okla. L. Rev. 
        157 (1962), for discussions of the privilege against self-
        incrimination.
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[[Page 2359]]

could not challenge the availability of the fifth amendment, it 
generally focused on the character of the answers sought and adequacy 
of the claim of the privilege.(1)

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 1. Watkins v United States, 354 U.S. 178, 196 (1957); see also Quinn v 
        United States, 349 U.S. 155 (1955), Emspak v United States, 349 
        U.S. 190 (1955), Bart v United States, 349 U.S. 219 (1955), 
        which were cited in Watkins, at 196.
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    Assertions of the fifth amendment privilege against self-
incrimination have been raised in reply to questions relating to a 
witness' own membership or his knowledge of another person's membership 
in subversive organizations. Thus, the Supreme Court held that 
Communist Party activity might tend to incriminate a person for 
violation of the Smith Act and that it was not necessary to show that 
the answers sought would support a conviction of crime, but only that 
they would furnish a link in the chain of evidence needed to prosecute 
a witness for violation of conspiracy to violate that 
act.(2) Moreover, because the government could not 
constitutionally convict persons for refusing to testify about 
potentially incriminating facts, a district court dismissed contempt 
charges against 19 witnesses who had asserted the fifth amendment and 
refused to answer questions relating to Communist Party membership and 
activities at a Honolulu hearing of the Committee on Un-American 
Activities.(3)
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 2. Blau v United States, 340 U.S. 159 (1950).
 3. Applicability of the privilege against self-incrimination to 
        congressional hearings was recognized in United States v Yukio 
        Abe, 95 F Supp 991 (D.C.Hawaii 1950) in an opinion entered one 
        month prior to Blau v United States. The decision to dismiss 
        the indictments was not reported.
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    An assertion of the privilege against self-incrimination does not 
have to take a particular form as long as the committee might 
reasonably be expected to understand it as an attempt to invoke the 
privilege.(4) Formulations held to be sufficient include: 
``the First Amendment to the Constitution, supplemented by the Fifth,'' 
(5) ``the First Amendment of the Con

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 4. Quinn v United States, 349 U.S. 155 (1955).
 5. Id. at p. 164.
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[[Page 2360]]

stitution supplemented by the Fifth Amendment,'' (6) 
primarily the First Amendment, supplemented by the Fifth.'' 
(7)

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 6. United States v Fitzpatrick, 96 F Supp 491, 493 (D.D.C. 1951).
 7. Emspak v United States, 349 U.S. 190, 193, 197 (1955); this 
        statement was held to be sufficient notwithstanding the fact 
        that the witness, in response to the question, ``Is it your 
        feeling that to reveal your knowledge of them [certain 
        individuals about whose communist activities the witness had 
        been questioned] would subject you to criminal prosecution?'' 
        replied, ``No, I don't think this Committee has a right to pry 
        into my associations. That is my own position.'' Emspak, at 
        195, 196.
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    Courts ``indulge every reasonable presumption against waiver of 
fundamental constitutional rights'' and refuse to interpret ambiguous 
statements as waivers of the privilege against self-
incrimination.(8) A witness may waive the privilege by 
failing to assert it,(9) expressly disclaiming 
it,(10) or testifying on the same matters concerning which 
he later claims the privilege.(11) However, because the 
privilege attaches to a witness in each particular case in which he is 
called to testify, without reference to his declarations at some other 
time or place or in some other proceeding, it was held not to be waived 
when a witness verified allegations in prior litigation (12) 
or answered the same questions several years prior to committee 
interrogation when interviewed by an agent of the Federal Bureau of 
Investigation.(13)
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 8. Emspak v United States, 349 U.S. 190 (1953).
 9. Id.
10. Hutcheson v United States, 369 U.S. 599, 609 (1962).
11. Rogers v United States, 340 U.S. 367 (1951); Presser v United 
        States, 238 F2d 233 (1960); cert. denied, 365 U.S. 316 (1960); 
        rein. denied, 365 U.S. 858 (1960).
12. Poretto v United States, 196 F2d 392 (5th Cir. 1952).
13. Marcello v United States, 196 F2d 437 (5th Cir. 1952).
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    Furthermore, a witness does not waive the privilege by giving 
answers which do not constitute an admission or proof of any 
crime.(14)
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14. United States v Costello, 198 F2d 200, 202 (2d Cir. 1952).
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    An insight into availability of the privilege may be gained by 
reviewing its purpose and permissible uses:

        Privilege . . . may not be used as a subterfuge.
        The privilege may only be asserted when there is reasonable 
    apprehension on the part of the witness that his answers would 
    furnish some evidence upon which he could be convicted of a 
    criminal offense against the United States or which would lead to a 
    prosecution of him for such offense, or

[[Page 2361]]

    which would reveal sources from which evidence could be obtained 
    that would lead to such conviction or to prosecution therefor.
        A witness is not bound to explain why answers to apparently 
    innocent questions might tend to incriminate him when circumstances 
    render such reasonable apprehension evident. Once it has become 
    apparent that the answers to a question would expose a witness to 
    the danger of conviction or prosecution, wider latitude is 
    permitted the witness in refusing to answer other questions upon 
    the ground that such answers would tend to incriminate 
    him.(15)
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15. United States v Jaffee, 98 F Supp 191 (D.D.C. 1951). See also, 
        Moreland, Allen B., Congressional Investigations and Private 
        Person, 40 So. Cal. L. Rev. 189, 258, 259 (1967) for a 
        discussion of the scope of coverage of the privilege.
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    Consequently, availability of the privilege is affected more by the 
context in which the question is asked and the underlying circumstances 
than by the nature of the question. In the application of this 
principle, a witness was not permitted to assert the privilege in 
response to questions relating to his place of residence and other 
preliminary data in the absence of a showing that elements of 
incrimination might attach to that information; (16) in 
another case, however, the privilege was held to be properly asserted 
in response to a question as to whether the witness knew any 
individuals who had been listed in an investigating committee's interim 
report which referred to such individuals as possibly involved in 
organized crime.(17)
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16. Simpson v United States, 241 F2d 222 (9th Cir. 1957).
17. Aiuppa v United States, 201 F2d 287 (6th Cir. 1952).
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    Similarly, a witness was permitted to refuse to answer a question 
as to his employment record because the question was asked ``in a 
setting of possible incrimination.'' (18) And a witness with 
a criminal record was said to have properly invoked the fifth amendment 
in response to all questions except his name and address before a 
Senate committee investigating crime.(19)
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18. Jakins v United States, 231 F2d 405 (9th Cir. 1956).
19. Marcello v United States, 196 F2d 437 (5th Cir. 1952).
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    After testifying to an incriminating fact, a witness may not refuse 
to answer more questions on the same subject on the ground that such 
answers would further incriminate. Thus, after a witness testified that 
she had been treasurer of the Communist Party in Denver, she could not 
invoke the privilege against self-incrimination when asked the name of 
the person to whom she had given or

[[Page 2362]]

ganizational records. The majority of the Supreme Court reasoned that 
upholding a claim of privilege in such a case would invite distortion 
of facts by permitting the witness to select any stopping place in 
testimony.(20)
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20. See Rogers v United States, 340 U.S. 367 (1951) which involved 
        questioning before a grand jury.
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    A witness who responded that he had complied to the best of his 
ability with a subpena and had made available all records he possessed 
at the time of service was held to have waived the privilege against 
self-incrimination; this waiver applied to a question relating to 
whether he had destroyed any of the subpenaed records since the time of 
service.(1)
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 1. Presser v United States, 384 F2d 233 (D.C. Cir. 1960), cert. 
        denied, 365 U.S. 816 (1960); rein. denied, 365 U.S. 855 (1960).
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    A witness who admitted attending a meeting of the Communist Party 
but denied that he was a member was not permitted to invoke the 
privilege against self-incrimination in response to questions asking 
him to identify other persons present at that meeting.(2)
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 2. United States v Singer, 139 F Supp 847 (D.D.C. 1956); aff'd. Singer 
        v United States, 244 F2d 349 (D.C. Cir. 1957); rev'd. on other 
        grounds on reh., 247 F2d 535 (1957).
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    Under Part V of the Organized Crime Control Act of 
1970,(3) any witness who refuses on the basis of his 
privilege against self-incrimination to testify or provide information 
may be granted immunity by court order based upon the affirmative vote 
either of a majority present before either House of Congress or two-
thirds of the members of a full committee for a proceeding before a 
committee, subcommittee, or joint committee. Furthermore, the Attorney 
General must be served with notice of the intention to request the 
order 10 or more days prior to making it. When these conditions are met 
and a duly appointed member of the House or committee concerned makes 
the request, a U.S. district court shall issue the order requiring the 
witness to testify or provide the information. Issuance of the order 
may be deferred not longer than 20 days from the date of the request 
upon application of the Attorney General. The effect of such an order 
is to compel the witness to testify or provide the information by 
immunizing him from use in a criminal trial not only of tes

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 3. 84 Stat. 926; 18 USC Sec. Sec. 6002, 6005. The previous immunity 
        statute, the Compulsory Testimony Act of 1954, codified at 18 
        USC Sec. 3486 (1964), as amended, 18 USC Sec. 3486 (1965), 
        which applied to any investigation relating to national 
        security or defense, was repealed. See also 6 Cannon's 
        Precedents Sec. 354, for a discussion of earlier cases on 
        immunity.
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[[Page 2363]]

timony or other information compelled under the order, but also any 
information directly or indirectly derived from such testimony or 
information.

    A witness may intervene in a proceeding to grant immunity to 
contest the issuance of the order on the ground that the procedure 
prescribed by the statute has not been followed. Nonetheless, a witness 
may not challenge the committee's scope of inquiry, pertinence of 
questions propounded, or constitutionality of the statute, because the 
discretion of the district court in an immunity hearing does not 
encompass these issues.(4)
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 4. In re McElrath, 248 F2d 612 (D.C Cir. 1957); this case arose under 
        18 USC Sec. 3486, which has been repealed.
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    The present immunity statute (5) has been interpreted to 
require the court to make sure of compliance with established 
procedures, but does not authorize discretion to determine the 
advisability of granting immunity or impose conditions on such a 
grant.(6)
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 5. 18 USC Sec. 6005.
 6. Application of U.S. Senate Select Committee on Presidential 
        Campaign Activities, 361 F Supp 1270 (D.C. 1973).
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