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decided: November 25, 1957.



Warren, Black, Frankfurter, Douglas, Burton, Clark, Harlan, Brennan, Whittaker

Author: Clark

[ 355 U.S. Page 67]

 MR. JUSTICE CLARK delivered the opinion of the Court.

This case is one of criminal contempt for refusal to answer questions at trial. Petitioner, admittedly a high executive officer of the Communist Party of California, and 13 co-defendants were indicted and convicted of conspiracy to violate the Smith Act.*fn1 During the trial, petitioner

[ 355 U.S. Page 68]

     refused on June 30, 1952, to answer 11 questions relating to whether persons other than herself were members of the Communist Party. The District Court held petitioner in contempt of court for each refusal to answer, and imposed 11 concurrent sentences of one year each, which were to commence upon petitioner's release from custody following execution of the five-year sentence imposed in the conspiracy case. This judgment was affirmed by the Court of Appeals. 227 F.2d 851. We granted certiorari. 350 U.S. 947. The principal question presented is whether the finding of a separate contempt for each refusal constitutes an improper multiplication of contempts. We hold that it does, and find that only one contempt has been committed.

The circumstances of petitioner's conviction are these. After the Government had rested its case in the Smith Act trial, all but four of the defendants -- petitioner and three others -- rested their cases. Petitioner took the stand and testified in her own defense. During the afternoon of the first day of her cross-examination, June 26, 1952, she refused to answer four questions about the Communist membership of a non-defendant and of a co-defendant who had rested his case.*fn2 In refusing to answer, she stated, ". . . That is a question which, if I were to answer, could only lead to a situation in which a person could be caused to suffer the loss of his job . . . and perhaps be subjected to further harassment, and . . . I cannot bring myself to contribute to that." She added, "However many times I am asked and in however many forms, to identify a person as a communist, I can't bring myself to do it . . . ." The District Court adjudged her guilty of civil contempt for refusing to answer these questions,

[ 355 U.S. Page 69]

     and committed her to jail until she should purge herself by answering the questions or until further order of the court. She was confined for the remainder of the trial.*fn3

On the third day of petitioner's cross-examination, June 30, 1952, despite instructions from the court to answer, petitioner refused to answer 11 questions which in one way or another called for her to identify nine other persons as Communists. The stated ground for refusal in these instances was petitioner's belief that either the person named or his family could "be hurt by" such testimony. She expressed a willingness to identify others as Communists -- and in one instance did so -- if such identification would not hurt them. The judge stated that he expected to treat these 11 refusals as criminal contempt under Rule 42 (a) of the Federal Rules of Criminal Procedure.*fn4 Adjudication of the contempt was deferred until completion of the principal case.

[ 355 U.S. Page 70]

     After conviction and imposition of sentences in the conspiracy case, the court, acting under 18 U. S. C. § 401,*fn5 found petitioner guilty of "eleven separate criminal contempts" for her 11 refusals to answer questions on June 30. No question is raised as to the form or content of the specifications.

The court sentenced petitioner to imprisonment for one year on each of the 11 separate specifications of criminal contempt. The sentences were to run concurrently and were to commence upon her release from custody following execution of the five-year sentence imposed on the conspiracy charge. Upon imposing sentence, the court stated that if petitioner answered the 11 questions then or within 60 days, while he had authority to modify the sentence under Rule 35 of the Federal Rules of Criminal Procedure, he would be inclined to accept her submission to the authority of the court. However, petitioner persisted in her refusal.

The summary contempt power in the federal courts, ". . . although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers

[ 355 U.S. Page 71]

     charged with the duty of administering them." Ex parte Terry, 128 U.S. 289, 313 (1888). The Judiciary Act of 1789 contained a section making it explicit that federal courts could "punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same . . . ." 1 Stat. 73, 83. After United States District Judge Peck's acquittal in 1831*fn6 on charges of high misdemeanors for summarily punishing a member of the bar for contempt in publishing a critical comment on one of his judgments, Congress modified the statute. In the Act of 1831, the contempt power was limited to specific situations such as disobedience to lawful orders. 4 Stat. 487. See Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in "Inferior" Federal Courts, 37 Harv. L. Rev. 1010, 1023-1038. The present code provision is substantially similar.*fn7 We have no doubt that the refusals in question constituted contempt within the meaning of 18 U. S. C. § 401 (3).

This case presents three issues. Petitioner claims that the sentences were imposed to coerce her into answering the questions instead of to punish her, making the contempts civil rather than criminal and the sentences to a prison term after the close of the trial a violation of Fifth Amendment due process. Second, petitioner argues that her several refusals to answer on both June 26 and June 30 constituted but a single contempt which was total and complete on June 26, so that imposition of contempt sentences for the June 30 refusals was in violation of due process. Finally, petitioner ...

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