419 U.S. 449 (1975), 73-689, Maness v. Meyers

Docket Nº:No. 73-689
Citation:419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574
Party Name:Maness v. Meyers
Case Date:January 15, 1975
Court:United States Supreme Court

Page 449

419 U.S. 449 (1975)

95 S.Ct. 584, 42 L.Ed.2d 574




No. 73-689

United States Supreme Court

Jan. 15, 1975

Argued October 22, 1974




A lawyer is not subject to the penalty of contempt for advising his client, during the trial of a civil case, to refuse on Fifth Amendment grounds to produce material demanded by a subpoena duces tecum when the lawyer believes in good faith that the material may tend to incriminate his client. To hold otherwise would deny the constitutional privilege against self-incrimination the means of its own implementation, since, when a witness is so advised the advice becomes an integral part of the protection accorded the witness by the Fifth Amendment. Pp. 458-470.

(a) That the client in any ensuing criminal action could move to suppress the subpoenaed material after it had been produced does not afford adequate protection, because, without something more, "he would be compelled to surrender the very protection which the privilege is designed to guarantee," Hoffman v. United States, 341 U.S. 479, 486. United States v. Blue, 384 U.S. 251, distinguished. Pp. 461-463.

(b) Here, where petitioner lawyer admitted that the allegedly obscene magazines subpoenaed for the purpose of enjoining their distribution were "of the same character" as magazines for distribution of which his client had recently [95 S.Ct. 587] been convicted (so that petitioner had, at the very least, a reasonable basis for assuming that a risk of further criminal prosecution existed), and where there was no assurance under state law that the material could be suppressed and no avenue other than assertion of the privilege, with the risk of contempt, that would have assured appellate review in advance of surrendering the magazines, the advice was given in good faith. Pp. 468-470.


BURGER, C.J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the result, in which BLACKMUN, J., joined, post, p. 470. WHITE, J., filed an opinion concurring in the result, post, p. 472.

Page 450

BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to decide whether, in a state civil proceeding, a lawyer may be cited for contempt for advising his client, a party to the litigation, that the client may refuse on Fifth Amendment grounds to produce subpoenaed material.


Petitioner is a lawyer. In January, 1973, his client was convicted before a Municipal Court in the city of Temple, Texas, of selling seven obscene magazines in violation of a Temple ordinance. Six days later, the client, Michael McKelva, was served by a Bell County deputy sheriff with a subpoena duces tecum directing him to produce 52 magazines before the 169th Judicial District Court. The titles of the magazines were given, but no other description was contained in the warrant.

Under the Texas Penal Code,1 upon application by

Page 451

any city attorney the district courts may issue injunctions to prevent illegal distribution of obscene matter. The subpoena here was requested by the Temple City Attorney in order to obtain such an injunction. Besides commanding production of the magazines, it ordered petitioner's client to appear at a hearing on February 1, 1973, and give testimony.

McKelva appeared represented by petitioner and an associate, Karl A. Maley. Earlier, Maley had filed a written motion to quash the subpoena. The motion claimed, inter alia, that the issuance of the subpoena was merely an attempt to require materials and testimony in violation of McKelva's constitutional right not to incriminate himself.

At the hearing, petitioner orally argued the motion to quash. He, too, contended that the city was attempting, through a civil proceeding, to discover [95 S.Ct. 588] evidence which properly should be discovered, if at all, through criminal process. He freely admitted that the magazines dealt explicitly with acts of a sexual nature, and that they were "of the same character" as the magazines for distribution

Page 452

of which McKelva previously had been convicted.2 Thus, he argued, it was quite clear that a "substantial possibility of self-incrimination" existed if McKelva was required to produce the magazines. Petitioner foresaw possible criminal prosecution either under the Temple ordinance3 again, or under Art. 527 itself.

Although petitioner claimed the Fifth Amendment's protection was available in any proceeding whether civil or criminal, he also urged that, under the circumstances, the injunctive proceeding for which the magazines were subpoenaed was quasi-criminal in nature. He noted that it was brought under the Penal Code of Texas and concluded that the city should secure a search warrant, describing with particularity the magazines it desired produced.

The City Attorney responded that the proceeding was purely civil, and that "there is no contention on the part of the City or any attempt on the part of the City to get any evidence for any criminal prosecution," and thus any material produced would not be incriminating. Further, he maintained, because there "are no criminal sanctions . . . , there will be no evidence that would be incriminating under the rules. . . ."

In reply, petitioner drew an analogy to tax cases where, he argued, courts have prohibited the Internal Revenue

Page 453

Service from using subpoenas to discover records which might tend to incriminate taxpayers. Petitioner contended that the nature of the proceeding in which evidence is sought is irrelevant to the compass of the Fifth Amendment, and that the character of the material requested is the only relevant inquiry. He asserted that the sole test is whether production of the material would create a substantial probability of criminal prosecution for his client. He noted that the City Attorney's representation that the city is not interested in a criminal prosecution "certainly does not bind, for example, the County Attorney, or anyone else . . . who might be interested in prosecuting such a case."

The court then denied the motion to quash and petitioner's client, McKelva, took the stand. In answer to preliminary questions, he gave his name and address and stated that he was the operator of Mike's News in Temple. He admitted to having been served with the subpoena, but when he was asked whether he had brought the magazines, he replied: "[U]nder the advice of Counsel, I refuse to answer on the grounds that it may tend to incriminate me." The City Attorney then moved the court to instruct the witness to answer, and, if he failed to do so, to hold him in contempt. The court asked petitioner's cocounsel what would be a reasonable time to allow for the witness to bring the magazines into court, because the court understood the applicable rule to require time for compliance before a motion for contempt should be entertained. Counsel replied that, according to their position, no time need be allowed, because, in any event, the subpoena would require production of evidence which would tend to incriminate the witness. The court then recessed until the afternoon and instructed the witness to return at that [95 S.Ct. 589] time with the requested magazines. Petitioner's cocounsel said he understood the instruction.

Page 454

When the court reconvened, McKelva was recalled, and he responded negatively when the City Attorney asked whether he had made any effort to obtain the subpoenaed magazines. He did, however, acknowledge that he had understood the court's order to bring them. After he indicated that the sole reason for his failure to comply was his belief that, if he did so it would entail a substantial possibility of self-incrimination, the City Attorney again moved for a contempt citation. This time, the court found McKelva in contempt and stated that the failure to respond would be treated as an admission that the subpoenaed magazines are obscene. Petitioner objected, arguing that a person may not be penalized for asserting a constitutional right by way of making an adverse finding against him. The judge replied that no finding had been made, but in view of petitioner's admission that the magazines were of the same nature as those for which his client previously had been convicted, there was justification for treating a refusal to produce them as an admission to be considered with other evidence.4 Petitioner responded that he was obliged to assert that, although the other magazines had been held obscene, the subpoenaed magazines were not.

After other testimony was heard, McKelva was again recalled and the court asked him if his disobedience was his own decision, or if it was on the advice of counsel. McKelva replied that it was on the advice of counsel, specifically petitioner and Maley. Petitioner then asked his client whether he would produce the magazines if counsel advised him they were not incriminatory. McKelva replied that he would. This made it clear that, but for the advice of counsel, McKelva would have produced the subpoenaed matter.

Page 455

After a short recess, the court ruled the subpoenaed magazines obscene, and enjoined their continued exhibition and sale. Finally, the court held petitioner and his cocounsel in contempt, as well as their client,5 and fixed punishment for each of them at 10 days' confinement and a $200 fine.

The judge noted his reluctance to find the attorneys in contempt, stating this was the first time he had ever done so, but he felt that the attorneys had usurped the authority of the court: "This Court has not been permitted to rule on the admissibility of that evidence. You have ruled on it. . . ." Before the hearing ended, however, petitioner stated that he and his cocounsel had not deliberately and intentionally...

To continue reading