In re Hitson

• Decision Date: 11 September 1959
• Docket Number: Misc. No. 1245.
• Court: U.S. District Court — Northern District of California
• Parties: Matter of Sally Ann HITSON and Shirley Joyce McGowan.

177 F. Supp. 834

Matter of Sally Ann HITSON and Shirley Joyce McGowan.

Misc. No. 1245.

United States District Court N. D. California, N. D.

September 11, 1959.

COPYRIGHT MATERIAL OMITTED

Milton L. Baldwin and Harry J. Englebright, Sacramento, Cal., for Sally Ann Hitson.

William H. Lally, Sacramento, Cal., for Shirley Joyce McGowan.

Robert E. Woodward, Asst. U. S. Atty., Sacramento, Cal., for the United States.

HALBERT, District Judge.

Sally Ann Hitson and Shirley Joyce McGowan were each called as a witness before the Grand Jury of this Court. After being duly sworn, questions were asked of each of these witnesses concerning matters being investigated by the Grand Jury, and each of these witnesses refused to answer certain of those questions on the ground that to do so might tend to incriminate her. The Foreman of the Grand Jury reported those facts to the Court, and asked the Court for advice and assistance in determining the propriety of the privilege claimed and, if improperly claimed, the aid of the Court in compelling the witnesses to answer.

After a series of proceedings the Court concluded that there was no reasonable probability that an answer to any of the questions would tend to incriminate the witnesses under any Federal law,¹ and directed the witnesses to return to the Grand Jury room and answer such questions. The witnesses continued to refuse to answer those questions theretofore ruled upon and, when again brought before the Court by the Grand Jury, the witnesses admitted that the questions were understood, but maintained that the privilege against self-incrimination, embodied in the Fifth Amendment of the Constitution of the United States, authorized such refusal.

The Court now is squarely faced with the issue of whether the witnesses, by refusing to answer said questions, after having been directed to do so by the Court, have each placed themselves in contempt of this Court.

Throughout these proceedings there has been some confusion on the part of counsel as to the proper course to be followed in this, an unfamiliar field. To eliminate any procedural questions here, and at the same time set up a guide for those faced with this problem in the future, the Court will set forth in detail the procedure which should be followed in a proceeding of this nature, together with the applicable law, and then juxtapose the results with the procedure and law actually followed and applied in this proceeding. The witnesses will thus have assurance that they have been afforded all of those rights to which they are entitled.

Procedure

I. The witness must be called before a legally constituted Grand Jury and placed under oath.

II. A pertinent question must be propounded to the witness by the prosecuting official or a member of the Grand Jury.

III. The witness must refuse to answer the question on the ground that an answer would tend to incriminate the witness under some Federal law.

IV. The Grand Jury, the prosecuting official and the witness (with his attorney, if he has one) shall come before the Court in open session.

V. The Foreman of the Grand Jury (or the prosecuting official) must inform the Court of the matters set forth in paragraphs I through III above, and ask the advice and assistance of the Court in connection with the privilege claimed.

VI. The Court hears the question which the witness has refused to answer. (This is done by having the Official Court Reporter take the witness stand and read the question to the Court and to those present.)

VII. The Court makes certain that the witness understands the question that has been put to him. (If the witness does not understand the question, it must be re-framed so that there is no doubt that he does understand it.)

VIII. The Court then proceeds to consider the bare question, which the witness has refused to answer, and determines whether or not, from the face of the question, an answer could, in fact, tend to incriminate the witness under any Federal law.

IX. If the question does not, on its face, disclose that an answer would tend to incriminate, the witness is then given an opportunity to be heard and, if it is desired, to introduce any relevant evidence which substantiates the claim that from the implications of the question, in the setting in which it is asked, there is a real and appreciable danger that the answer would be dangerous because an injurious disclosure might result from it (In re Portell, 7 Cir., 245 F.2d 183; Hooley v. United States, 1 Cir., 209 F.2d 234; and Alexander v. United States, 9 Cir., 181 F.2d 480).

X. If, after a consideration of the question in the light of the evidence adduced, any other relevant facts, and the applicable law, the Court is satisfied that an answer would not tend to incriminate the witness under any Federal law, the Court then rules that the privilege may not be validly claimed and directs the witness to return to the Grand Jury room and answer the question.

XI. Should the witness continue to refuse to answer the question, this fact is reported to the Court in open session with the Grand Jury, the prosecuting official and the witness (with his attorney, if he has one) present.

XII. The Court again hears the question as in step VI, supra.

XIII. The Court then, in the presence of, and on behalf of the Grand Jury, puts the question to the witness and inquires:

A. If the witness understands the question;

B. If the witness understands that the Court has ruled that the privilege against self-incrimination may not be validly claimed for that question, and the Court has ordered him to answer it;

C. If the witness has given all the reasons that he has for his refusal to answer the question; and

D. If the witness still refuses to answer the question as directed by the Court.

XIV. If the witness affirmatively answers each of the four questions set forth in paragraph XIII, supra, the witness has committed a contempt in the presence of the Court. The Court may then certify that it saw and heard the conduct constituting such contempt, and may proceed to punish the witness summarily under the provisions of Rule 42 (a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.

In the instant proceeding, the precise steps, set forth above, have not been followed to the letter. However, the proceedings have been, if anything, more solicitous of the rights of the witnesses than the bare rules require. It is apparent that the requirements of the law, relative to matters procedural, have been fully and fairly satisfied.

The Law Involved

The Fifth Amendment of the Constitution of the United States provides that "No person * * * shall be compelled in any criminal case to be a witness against himself * * *". Experience, and common sense, have made it abundantly clear that this phrase means more than what the naked words, when individually considered, would add up to, if the right sought to be protected is to be given a realistic and useful meaning. Whatever may have been the historical background of the phrase, or the intention of the Founding Fathers when they placed it in the Bill of Rights, we now recognize that for the Federal courts the rule must be that no person shall at any time be compelled to answer any question, or say anything, which might be the confession of the commission of a public offense, or which might be used against him in an attempt to convict him of a public offense. And this rule is inviolate.

While a statement of the privilege is not difficult, its application in the many possible factual circumstances in which it might arise, poses some rather considerable problems.

The first problem to be resolved is: who determines whether an answer to a specific question, put to a person called as a witness before a Grand Jury, will in fact tend to incriminate that person? On this point the law is clear that the decision must be made by the Court, and not by the witness (Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344, and Miller v. United States, 9 Cir., 95 F.2d 492).

The next problem is the selection of the proper test to be applied by the Court in making this decision. The formulation of a general rule is not easy. The Court must, on the one hand, zealously guard the rights of the individual, and, on the other hand, society must be protected against the nefarious conduct of its members.² In the instant proceeding there has been no blanket refusal to answer any question, even those obviously harmless (See Enrichi v. United States, 10 Cir., 212 F.2d 702, and Elwell v. United States, 7 Cir., 275 F. 775, certiorari denied 257 U.S. 647, 42 S.Ct. 56, 66 L.Ed. 415), so the refusal of the witnesses to answer certain questions has not been merely contumacious. For this reason a rule, general in its application, must be selected and applied to each of the questions individually. In selecting the rule to be applied the Court is mindful of the statement that it must be perfectly clear, after a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer cannot possibly have a tendency to incriminate (Hoffman v. United States, 341 U.S. 479, at page 488, 71 S.Ct. 814, 95 L.Ed. 1118). Considered in its context, and in the light of other decisions of the Supreme Court of the United States,³ it would seem more accurate to say that the rule is that it is "enough (1) that the trial court be shown by argument how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness with some crime against the United States, and (2) that this suggested course and scheme of linkage not seem incredible in the circumstances of the particular case" (United States v. Coffey, 3 Cir., 198 F.2d 438, at page 440). This rule is, of course, an expansion of the doctrine that the privilege may be validly claimed where an answer will, or might, become a "link in the chain of evidence" (Blau v. United States, ...