by John Marshall Harlan

“ In the last analysis, the Court's holding seems to rest on the premise that the questions put to Emspak became automatically incriminatory once it was shown that he and those about whom he was interrogated were under suspicion of communism. This is painting with too broad a brush.
It is true that under the rule as it exists a witness may sometimes have to walk a tightrope between waiver of his privilege, if he answers a question later held to be incriminatory, and contempt, if he refuses to answer a question later held to be nonincriminatory. ”

“ Perhaps a privilege to object could be derived, however, from what must be taken to be the statute's overall purpose: to enable committees to obtain the information they wish without at the same time treating witnesses unfairly. Thus, a witness might be held privileged to refuse to answer a question, for the purpose of presenting, at reasonable length, a colorable objection to the propriety of the question. But this privilege would terminate when it became reasonably apparent to the witness that the objection was not acceptable to the Committee. ”

“ What I do submit is that the privilege should not be available when the facts have been sufficiently developed at the time the claim of privilege is made so that it is plain that no possible answer to the question put to the witness could rationally tend to prove his guilt or supply the prosecution with leads to evidence against him. ”

“ Certainly, in these circumstances, the fact of each having seen the other cannot rationally be said to have any tendency to establish their guilt, or, in any realistic sense, to aid the prosecution in discovering evidence against them, since the prosecution already would be expected to have independent evidence of their presence in the bank on that day. In other words, if background facts can make an innocent question dangerous, they can also make a dangerous question innocent. ”

“ Of course, in some cases the background facts making an apparently innocent question dangerous may not be known to the court. Then the choice must be made between requiring the court to accept the witness' word that facts exist which would make his answer incriminating, and requiring the witness to explain the circumstances which justify his claim of privilege. To be sure, the second alternative involves the danger that the witness will have to reveal some incriminatory evidence in order to show why he should not be required to answer. ”

“ Suppose two men are suspected of having conspired to steal cash from a bank one day during business hours. Each is asked whether he saw the other on the day of the theft, and each pleads his privilege. ”

“ But an official paper or record produced by him is not within the said privilege.' The statute, falling short of a complete grant of immunity to the witness from prosecution on account of testimony given by him, would not have been effective to compel testimony over a valid claim of privilege, but it was effective to prevent the use of such testimony against the witness in a subsequent criminal prosecution. ”

“ But in requiring that a witness who objects be 'clearly apprised' that his objection is unsatisfactory and that the Committee wishes his answer, the Court may have meant to go further. If that is so, then I would question the standard itself. Moreover, I think that even this more lenient standard would have been met in this case. For surely the record shows that Emspak was clearly apprised that, despite his objections, the Committee wanted answers to the 58 questions, so that there is a violation of the statute under either standard. ”

“ Such questions include those which call for an admission of a crime or a necessary element of a crime, or a fact which, while innocent on its face, is dangerous in the light of other facts already developed. ”

“ Emspak. Your activities are designed to harm the working people of this country. Every action this committee has ever taken has done that. You interfered last summer in the election of a local union at the request of a priest. ”

“ As to Emspak's Knowledge That the Subcommittee Wanted Its Questions Answered.
The majority holds that whenever a witness objects to a question there is no violation of 2 U.S.C. § 192, 2 U.S.C.A. § 192, until he is clearly apprised that the Committee demands his answer, notwithstanding his objection. Until then, so the Court holds, the witness has not evidenced the requisite criminal intent, that is, a deliberate refusal to answer. The Court elaborates this thesis in the Quinn case, 349 U.S. 155, 75 S.Ct. ”

“ Had Emspak admitted knowing any of these people, this might tend to show association with communists. While the decisions of this Court do not establish that these factors would have sufficed to make those questions incriminatory, lower courts have gone far in this direction. See Kasinowitz v. United States, 9 Cir., 1950, 181 F.2d 632; United States v. Raley, D.C.1951, 96 F.Supp. 495; see also Falknor, Self-Crimination Privilege: 'Links in the Chain,' 5 Vand.L.Rev. 479, 485-489 (1952) .
But there were also other background facts and circumstances. ”