333 U.S. 257 (1948), 215, In re Oliver

Docket Nº:No. 215
Citation:333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682
Party Name:In re Oliver
Case Date:March 08, 1948
Court:United States Supreme Court

Page 257

333 U.S. 257 (1948)

68 S.Ct. 499, 92 L.Ed. 682

In re Oliver

No. 215

United States Supreme Court

March 8, 1948

Argued December 16, 1947



In obedience to a subpoena, petitioner appeared as a witness before a Michigan circuit judge who was then conducting, in accordance with Michigan law, a secret "one-man grand jury" investigation of crime. After petitioner had given certain testimony, the judge-grand jury, acting in the belief that his testimony was false and evasive (which belief was based partly on testimony given by at least one other witness in petitioner's absence), summarily charged him with contempt, convicted him, and sentenced him to sixty days in jail. These proceedings were secret, and petitioner had no opportunity to secure counsel, to prepare his defense, to cross-examine the other grand jury witness, or to summon witnesses to refute the charge against him.


1. The secrecy of petitioner's trial for criminal contempt violated the due process clause of the Fourteenth Amendment. Pp. 266-273, 278.

(a) The reasons advanced to support the secrecy of grand jury investigative proceedings do not justify secrecy in the trial of a defendant accused of an offense for which he may be fined or sent to jail. Pp. 264-266.

(b) An accused is entitled to a public trial, at least to the extent of having his friends, relatives and counsel present -- no matter with what offense he may be charged. Pp. 271-272.

2. The failure to afford petitioner a reasonable opportunity to defend himself against the charge of giving false and evasive testimony was a denial of due process of law. Pp. 273-278.

(a) As a minimum, due process requires that an accused be given reasonable notice of the charge against him, the right to examine the witnesses against him, the right to testify in his own behalf, and the right to be represented by counsel. P. 273.

(b) The circumstances of this case did not justify denial of these rights on the ground that the trial was for contempt of court committed in the court's actual presence. Ex parte Terry, 128 U.S. 289, distinguished. Pp. 273-278.

318 Mich. 7, 27 N.W.2d 323, reversed.

Page 258

In a habeas corpus proceeding, the State Supreme Court denied petitioner's release from imprisonment upon a sentence for contempt. 318 Mich. 7, 27 N.W.2d 323. This Court granted certiorari. 332 U.S. 755. Reversed, p. 278.

BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

A Michigan circuit judge summarily sent the petitioner to jail for contempt of court. We must determine whether he was denied the procedural due process guaranteed by the Fourteenth Amendment.

In obedience to a subpoena, the petitioner appeared as a witness before a Michigan circuit judge who was then conducting, in accordance with Michigan law, a "one-man grand jury" investigation into alleged gambling and official corruption. The investigation presumably took place in the judge's chambers, though that is not certain.

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Two other circuit judges were present in an advisory capacity.1 A prosecutor may have been present. A stenographer was most likely there. The record does not show what other members, if any, of the judge's investigatorial staff participated in the proceedings. It is certain, however, that the public was excluded -- the questioning was secret in accordance with the traditional grand jury method.

[68 S.Ct. 501] After petitioner had given certain testimony, the judge-grand jury, still in secret session, told petitioner that neither he nor his advisors believed petitioner's story -- that it did not "jell." This belief of the judge-grand jury was not based entirely on what the petitioner had testified. As will later be seen, it rested in part on beliefs or suspicions of the judge-jury derived from the testimony of at least one other witness who had previously given evidence in secret. Petitioner had not been present when that witness testified, and, so far as appears, was not even aware that he had testified. Based on its beliefs thus formed -- that petitioner's story did not "jell" -- the judge-grand jury immediately charged him with contempt, immediately convicted him, and immediately sentenced him to sixty days in jail. Under these circumstances of haste and secrecy, petitioner, of course, had no chance to enjoy the benefits of counsel, no chance to prepare his defense, and no opportunity either to cross examine the other grand jury witness or to summon witnesses to refute the charge against him.

Three days later, a lawyer filed on petitioner's behalf in the Michigan Supreme Court -- the petition for habeas corpus now under consideration. It alleged, among other

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things, that the petitioner's attorney had not been allowed to confer with him and that, to the best of the attorney's knowledge, the petitioner was not held in jail under any judgment, decree or execution, and was "not confined by virtue of any legal commitment directed to the sheriff, as required by law." An order was then entered, signed by the circuit judge, that he had, while "sitting as a One-Man Grand Jury," convicted the petitioner of contempt of court because petitioner had testified "evasively" and had given "contradictory answers" to questions. The order directed that petitioner

be confined in the county jail . . . for a period of sixty days . . . or until such time as he . . . shall appear and answer the questions heretofore propounded to him by this Court. . . .

The Supreme Court of Michigan, on grounds detailed in the companion case of In re Hartley, 317 Mich. 441, 27 N.W.2d 48,2 rejected petitioner's contention that the summary manner in which he had been sentenced to jail in the secrecy of the grand jury chamber had deprived him of his liberty without affording him the kind of notice, opportunity to defend himself, and trial which the due process clause of the Fourteenth Amendment

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requires.3 In re Oliver, 318 Mich. 7, 27 N.W.2d 323. We granted certiorari, 332 U.S. 755, to consider these procedural due process questions.

The case requires a brief explanation of Michigan's unique one-man grand jury system.4 That state's first constitution (1835), like the Fifth Amendment to [68 S.Ct. 502] the Federal Constitution, required that most criminal prosecutions be begun by presentment or indictment of a grand jury. Art. I, § 11. This compulsory provision was left out of the 1850 constitution and from the present constitution (1908). However, Michigan judges may still, in their discretion, summon grand juries, but we are told by the attorney general that this discretion is rarely exercised, and that the "One-Man Grand Jury" has taken the place of the old Michigan 16 to 23-member grand jury, particularly in probes of alleged misconduct of public officials.

The one-man grand jury law was passed in 1917 following a recommendation of the State Bar Association that, in

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the interest of more rigorous law enforcement, greater emphasis should be put upon the "investigative procedure" for "probing" and for "detecting" crime.5 With this need uppermost in its thinking, the Bar Association recommended a bill which provided that justices of the peace be vested with the inquisitorial powers traditionally conferred only on coroners and grand juries. The bill as passed imposed the recommended investigatory powers not only on justices of the peace, but on police judges and judges of courts of record as well. Mich.Laws 1917, Act 196.

Whenever this judge-grand jury may summon a witness to appear, it is his duty to go and to answer all material questions that do not incriminate him. Should he fail to appear, fail to answer material questions, or should the judge-grand jury believe his evidence false and evasive, or deliberately contradictory, he may be found guilty of contempt. This offense may be punishable by a fine of not more than $100, or imprisonment in the county jail not exceeding sixty days, or both, at the discretion of the judge-grand jury. If, after having been so sentenced, he appears and satisfactorily answers the questions propounded by the judge-jury, his sentence may, within the judge-jury's discretion, be commuted or suspended. At the end of his first sentence, he can be resummoned and subjected to the same inquiries. Should the judge-jury again believe his answers false and evasive, or contradictory, he can be sentenced to serve sixty days more unless he reappears before the judge-jury during the second 60-day period and satisfactorily answers the questions, and the judge-jury, within

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its discretion, then decides to commute or suspend his sentence.6

In carrying out this authority a judge-grand jury is authorized to appoint its own prosecutors, detectives and aides at public expense,7 all or any of whom may, at the discretion of the justice of the peace or judge, be admitted to the inquiry. Mich.Stat.Ann. § 28.944 (Henderson 1938). Comp.Laws 1929, § 17218. A witness may be asked questions on all subjects, and need not be advised of his privilege against self-incrimination, even though the questioning is in secret.8 And these secret interrogations can be carried on day or night, in a public place or a "hideout," a courthouse, an office building, a hotel room, a home, or a place of business; so well is this ambulatory power understood in Michigan that the one-man grand jury is also popularly referred to as the "portable grand jury."9

It was a circuit court judge-grand jury before which petitioner testified. That judge-jury filed in the State Supreme [68 S.Ct. 503] Court an answer to this petition for habeas corpus. The answer contained fragments of what was apparently a stenographic transcript of petitioner's testimony given before the grand jury. It was these fragments of testimony, so the answer stated, that the "Grand

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Jury" had concluded to be "false...

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