266 U.S. 34 (1924), 404, McCarthy v. Arndstein

Docket Nº:No. 404, October Term, 1922
Citation:266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158
Party Name:McCarthy v. Arndstein
Case Date:October 20, 1924
Court:United States Supreme Court

Page 34

266 U.S. 34 (1924)

45 S.Ct. 16, 69 L.Ed. 158




No. 404, October Term, 1922

United States Supreme Court

Oct. 20, 1924

Petition for rehearing granted October 15, 1923

Reargued November 27, 1923




1. The right to examine the bankrupt in a bankruptcy proceeding, for the purpose of obtaining possession of property belonging to his estate, rests wholly upon § 21a of the Bankruptcy Act. P. 39.

2. That section, prescribing no rules for the examination, impliedly adopts the general rules governing admissibility of evidence and competency and compellability of witnesses; it indicates no intention to take from any witness the privilege against self-incrimination, and makes clear the purpose not to differentiate between the bankrupt and other witnesses, nor between examinations relating to property from those relating to his acts or conduct. Id.

3. The constitutional privilege against self-incrimination applies to civil proceedings, and, in this country, whatever the rule in England,

Page 35

it may, in the absence of any statute affording him complete immunity, be asserted by a bankrupt when being examined concerning his estate under § 21a of the Bankruptcy Act. Pp. 40, 42.

4. Decisions requiring bankrupts to surrender books and papers, though containing incriminating evidence, rest on the substantive obligation of bankrupts to surrender them as property; the constitutional privilege against self-incrimination relate to the adjective law. P. 41.

Judgment reaffirmed.

Appeal from a judgment of the district court. in habeas corpus, discharging Arndstein from custody under a commitment for contempt based on his refusal to answer questions propounded on his examination as a bankrupt. The judgment was affirmed in McCarthy v. Arndstein, 262 U.S. 355. The present decision is upon a rehearing.

Page 38

BRANDEIS, J., lead opinion

MR. JUSTICE BRANDEIS delivered the opinion of the Court.

In 1920, Arndstein was adjudged an involuntary bankrupt in the Southern District of New York. Pursuant to a subpoena, he appeared before a special commissioner for examination as to his assets under § 21a of the Bankruptcy Act of July 1, 1898, c. 541, 30 Stat. 544, 552, as amended by Act Feb. 5, 1903, § 7, was sworn as a witness, and freely answered some questions. Others he refused to answer on the ground that to do so might tend to incriminate him. Having persisted in this refusal after the district judge ordered him to answer, Arndstein was committed for contempt. He did not appeal from the order or file a petition to revise. Instead, he applied to another judge sitting in the same court for a writ of habeas corpus. The petition was denied on the ground that the bankrupt had

Page 39

waived his privilege by complying without objection to the order that he file a schedule of his assets.1 The judgment denying the writ was reversed by this Court, but the mandate required merely that the lower court issue the writ and then proceed as usual. Arndstein v. McCarthy, 254 U.S. 71 and 379.

Thereupon the district court issued the writ of habeas corpus. The marshal made a return which included a transcript of the entire proceedings. The court held that, despite certain oral answers given, the bankrupt was entitled to cease disclosure. The judgment, which discharged the bankrupt from custody, was affirmed by this Court. McCarthy v. Arndstein, 262 U.S. 355, 357-358. The case is now before us on rehearing, granted in order to permit argument of the proposition, not presented by counsel before, that the [45 S.Ct. 17] privilege against self-incrimination does not extend to an examination of the bankrupt made for the purpose of obtaining possession of property belonging to his estate. 263 U.S. 676.

The right to examine the bankrupt, here in question, rests wholly on § 21a. This section provides that the court may

require any designated person, including the bankrupt and his wife, to appear in court . . . to be examined concerning the acts, conduct, or property of a bankrupt whose estate is in process of administration. . . .

The subject matter of the examination is thus specifically prescribed by the act. There is no provision prescribing the rules by which the examination is to be governed. These are, impliedly, the general rules governing the admissibility of evidence and the competency and compellability of witnesses.2 The section contains no indication

Page 40

of an intention on the part of Congress to take from any witness the privilege against self-incrimination. Moreover, the section makes clear the purpose not to differentiate between the bankrupt and other witnesses, nor to differentiate examinations which relate to the property from those which relate to the...

To continue reading