MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is a prosecution for contempt arising from petitioner's refusal to answer a series of questions propounded to him by a federal grand jury. In every respect but one, this case is a replica of Brown v. United States, 359 U.S. 41, and as to all common issues it is controlled by that case. In Brown, however, we expressly declined to decide the effect of claimed "secrecy" upon proceedings culminating in the petitioner's sentencing for contempt, "because the record does not show this to be the fact." 359 U. S., at 51, n. 11. Here, it appears that the contemptuous conduct, the adjudication of guilt, and the imposition of sentence all took place after the public had been excluded from the courtroom, in what began and was continued as "a Grand Jury proceeding." The effect of this continuing exclusion in the circumstances of the case is the sole question presented.
On the morning of April 18, 1957, pursuant to a subpoena, petitioner appeared as a witness before a federal grand jury in the Southern District of New York engaged in investigating violations of the Interstate Commerce Act. He was asked six questions relevant to the grand jury's investigation. After consultation with his attorney, who was in an anteroom, he refused to answer them on the ground that they might tend to incriminate him. He persisted in this refusal after having been directed to answer by the foreman of the grand jury and advised by
Later that day the grand jury, government counsel, petitioner and his attorney appeared before Judge Levet, sitting in the District Court for the Southern District of New York, the grand jury having sought "the aid and assistance of the Court, in a direction to a witness, Morry Levine, who has this morning appeared before the Grand Jury and declined to answer certain questions that have been put to him." The record of the morning's proceedings before the grand jury was read. After argument by counsel, the judge ruled that the adequate immunity conferred by statute deprived petitioner of the right to refuse to answer the questions put to him. Petitioner was ordered to appear before the grand jury on April 22, and was directed by the court then to answer the questions.
On the morning of April 22 petitioner appeared before the grand jury. The questions were again put to him and he again refused to answer. Once again the grand jury, government counsel, petitioner and his counsel went before Judge Levet, for "the assistance of the Court in regard to the witness Morry Levine." At this time the record shows the following:
Petitioner, his counsel, the grand jury, government counsel and the court reporter remained. Petitioner objected to further participation by the court in the process of
The judge, however, did not treat petitioner's renewed refusal to answer the grand jury's questions as a definitive contempt. He chose to proceed just as he had two weeks earlier in the case of Brown, reviewed here as Brown v. United States, supra, 359 U.S. 41. The morning's grand jury proceedings, showing petitioner's refusals to answer, were read, and petitioner was ordered by the judge to take the stand. The court indicated it was proceeding as "[t]he Court and the Grand Jury" "in accordance with Rule 42 (a)," which relates to the procedure in cases of contempt "committed in the actual presence of the court." Over objection, the court then put to petitioner the six questions which he had refused to answer when propounded by the grand jury. Petitioner again refused to answer these questions on the claim of the privilege against self-incrimination. In answer to a question by the court he stated that he would continue to refuse on that ground should the grand jury again put the questions to him. Government counsel asked that petitioner be adjudged in contempt "committed in the physical presence of the Judge." The court asked for reasons "why I should not so adjudicate this witness in contempt." Petitioner's counsel made three
The course of proceeding followed by the District Court in this case for compelling petitioner's testimony was the one approved in Brown. Specifically, it was established by that case that, after petitioner had disobeyed the court's direction to answer the grand jury's questions before that body, it was proper for the court, upon application of the grand jury, (1) to disregard any contempt committed outside its presence; (2) to put the questions directly to petitioner in the court's presence as well as in the presence of the grand jury; and (3) to punish summarily under Rule 42 (a) as a contempt committed "in the actual presence of the court" petitioner's refusal thereupon to answer.
It was surely not error for the judge initially to have cleared the courtroom on April 22 when the grand jury appeared before him for the second time seeking his "assistance . . . in regard to the witness Morry Levine."
From the very beginning of this Nation and throughout its history the power to convict for criminal contempt has been deemed an essential and inherent aspect of the very existence of our courts. The First Congress, out of whose 95 members 20, among them some of the most distinguished lawyers, had been members of the Philadelphia Convention, explicitly conferred the power of contempt upon the federal courts. Section 17 of the Judiciary Act of 1789, 1 Stat. 73, 83. That power was recognized by this Court as early as 1812, in a striking way. United States v. Hudson, 7 Cranch 32, 34. As zealous a guardian of the procedural safeguards of the Bill of Rights as the first Mr. Justice Harlan, in sustaining the power summarily to punish contempts committed in the face of the court, described the power in this way: "the offender may, in . . . [the court's] discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; . . . such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions." Ex parte Terry, 128 U.S. 289, 313 (1888). It is a particular exercise of this power of summary punishment of contempt committed in the court's presence which is at issue in this case. This Court has not been wanting in
Procedural safeguards for criminal contempts do not derive from the Sixth Amendment. Criminal contempt proceedings are not within "all criminal prosecutions" to which that Amendment applies. Ex parte Terry, 128 U.S. 289, 306-310; Cooke v. United States, 267 U.S. 517, 534-535; Offutt v. United States, 348 U.S. 11, 14. But while the right to a "public trial" is explicitly guaranteed by the Sixth Amendment only for "criminal prosecutions," that provision is a reflection of the notion, deeply rooted in the common law, that "justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, at 14. Accordingly, due process demands appropriate regard for the requirements of a public proceeding in cases of criminal contempt, see In re Oliver, 333 U.S. 257, as it does for all adjudications through the exercise of the judicial power, barring narrowly limited categories of exceptions such as may be required by the exigencies of war, see Amendment to Rule 46 of the Admiralty Rules, June 8, 1942, 316 U.S. 717, revoked May 6, 1946, 328 U.S. 882, or for the protection of children, see 18 U. S. C. § 5033.
Inasmuch as the petitioner's claim thus derives from the Due Process Clause and not from one of the explicitly defined procedural safeguards of the Constitution, decision must turn on the particular circumstances of the case, and not upon a question-begging because abstract and
The grand jury is an arm of the court and its in camera proceedings constitute "a judicial inquiry." Hale v. Henkel, 201 U.S. 43,66. "The Constitution itself makes the grand jury a part of the judicial process. It must initiate prosecution for the most important federal crimes. It does so under general instructions from the court to which it is attached and to which, from time to time, it reports its findings." Cobbledick v. United States, 309 U.S. 323, 327. Unlike an ordinary judicial inquiry, where publicity is the rule, grand jury proceedings are secret. In the ordinary course, therefore, contempt of the court committed through a refusal to answer questions put before the grand jury does not occur in a public proceeding. Publicity fully satisfying the requirements of due process is achieved in such a case when a public trial upon notice is held on the charge of contempt under Rule 42 (b) of the Federal Rules of Criminal Procedure.
Brown v. United States, supra, established that a grand jury as an arm of the court has available to it another course to vindicate its authority over a lawlessly recalcitrant witness. Appeal may be made to the court under whose aegis the grand jury sits to have the witness ordered to answer the grand jury's inquires in the judge's physical presence, so that the court's persuasive exertion to induce obedience, and its power summarily to commit for contempt should its authority be ignored, may be brought
In the present case grand jury secrecy freely gave way insofar as petitioner's counsel was present and was permitted to be fully active in behalf of his client throughout the proceedings before Judge Levet. Petitioner had ample notice of the court's intention to put the grand jury's questions directly to him, and to proceed against him summarily should he persist in his refusal to answer. Had petitioner requested, and the court denied his wish, that the courtroom be opened to the public before the final stage of these proceedings we would have a different case. Petitioner had no right to have the general public present while the grand jury's questions were being read. However, after the record of the morning's grand jury proceedings had been read, and the six questions put to petitioner with a direction that he answer them in the court's presence, there was no further cause for enforcing secrecy in the sense of excluding the general public. Having refused to answer each question in turn, and having resolved not to answer at all, petitioner then might well have insisted that, as summary punishment was to be imposed, the courtroom be opened so that the act of contempt, that is, his definitive refusal to comply with the court's direction to answer the previously propounded questions, and the consequent adjudication and sentence might occur in public. See Cooke v. United States, 267 U.S. 517, 534-536. To repeat, such a claim evidently was not in petitioner's thought, and no request to open the courtroom was made at any stage of the proceedings.
This case is wholly unlike In re Oliver, 333 U.S. 257. This is not a case where it is or could be charged that the judge deliberately enforced secrecy in order to be free of the safeguards of the public's scrutiny; nor is it urged that publicity would in the slightest have affected the conduct of the proceedings or their result. Nor are we dealing with a situation where prejudice, attributable to secrecy, is found to be sufficiently impressive to render irrelevant failure to make a timely objection at proceedings like these. This is obviously not such a case. Due regard generally for the public nature of the judicial process does not require disregard of the solid demands of the fair
MR. JUSTICE BLACK, whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS join, dissenting.
The Court here upholds the petitioner's conviction and imprisonment for contempt of court in refusing to answer grand jury questions, although admitting that "the contemptuous conduct, the adjudication of guilt, and the imposition of sentence all took place after the public had been excluded from the courtroom, in what began and was continued as `a Grand Jury proceeding.'" Stated not quite so euphemistically the Court is simply saying that this petitioner was summarily convicted and sentenced to a one-year prison term after a "trial" from which the public was excluded—a governmental trial technique that liberty-loving people have with great reason feared and hated in all ages.
This Court condemned such secret "trials" 12 years ago in the case of In re Oliver, 333 U.S. 257. There Oliver had been convicted by a Michigan state court and sentenced to jail for 60 days on a charge of contempt based on his refusal to answer questions propounded by a one-man grand jury. Since the public had been excluded from Oliver's "trial" we were squarely faced with this precise question: "Can an accused be tried and convicted for contempt of court in grand jury secrecy?" Id., at 265-266. Our answer was an emphatic "No," although MR. JUSTICE FRANKFURTER and MR. JUSTICE JACKSON dissented. We held that Michigan had denied Oliver due process of law guaranteed by the Fourteenth Amendment by convicting him of contempt in a trial from which the
It seems apparent, therefore, that the Court in upholding petitioner's sentence for contempt here is not only repudiating our Oliver decision in whole or in part but is at the same time approving a secret trial procedure which apologists for the Star Chamber have always been careful to deny even that unlimited and unlamented court ever used. The Court holds that petitioner's secret trial here violated neither the Due Process Clause of the Fifth Amendment nor the Sixth Amendment's guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ." Certainly the one-year prison sentence for criminal contempt here, like the three-year criminal contempt sentence in Green v. United States, 356 U.S. 165, has all the earmarks and the consequences of a plain, ordinary criminal prosecution. Id., 193 (dissenting opinion).
In the Green case I asked for a reappraisal of the whole doctrine of summary contempt trials. I repeat that "I cannot help but believe that this arbitrary power
I wholly reject the idea that the presence of any power so awesome and arbitrary as "criminal contempt" has grown to be, as nourished by courts, is essential to preserve the independence of the judiciary and I am constrained to say that such a plea of necessity has a strange sound when voiced by our independent judiciary dedicated to fair trials in accordance with ancient safeguards. It is pertinent here to repeat the statement of one of our great lawyers, Edward Livingston, who said: " `Not one of the oppressive prerogatives of which the crown has been successively stripped, in England, but was in its day, defended on the plea of necessity. Not one of the attempts to destroy them, but was deemed a hazardous
In the closing part of its opinion the Court indicates that its decision rests to some extent upon a failure of petitioner to make the proper kind of objection to the secrecy of his trial. His objection is referred to as "an abstract claim [raised] only as an afterthought on appeal." The Court thinks that the trial judge was not given "an opportunity to avoid reliance on [the claim now made]." The record shows, however, that on the two occasions petitioner was brought before the court, he requested a trial according to due process, notice and specification of the charges against him, an opportunity to prepare his defenses, an adjournment to obtain compulsory process and subpoena witnesses as well as, in general, proceedings under Rule 42 (b), which undoubtedly calls for a public trial. Petitioner's objection seems sufficient to me to raise the extremely important point of his constitutional right to a public trial.
Despite the Court's decision that petitioner's repeated claims for constitutional procedures were not enough to raise the constitutionality of his secret "trial," there is an intimation in the Court's opinion that maybe at some future time, in some future contempt conviction, the Court would frown upon exclusion of the public from some part of a contempt trial such as this. Here it is said, however, "The proceedings properly began out of the public's presence and one stage of them flowed naturally into the next. There was no obvious point at which, in light of the presence of counsel, it can be said that the onus was imperatively upon the trial judge to interrupt the course of proceedings upon his own motion and establish a conventional public trial." The theory of the Court here seems to be that since grand jury hearings in the grand jury room are secret, the grand jury's proceedings in court against allegedly recalcitrant witnesses may
The Court seems to conclude its holding by invoking the doctrine of error without injury. In my judgment it is scant respect for the constitutional command that trials be had in public to look at the circumstances of the trial and conviction of a man tried in secret and approve the trial on the ground that "anyhow he wasn't hurt." I think every man is hurt when any defendant in America is convicted and sent to the penitentiary after a secret "trial" which is condemned by the Constitution's requirement of public trials as well as its command that all trials be conducted according to due process of law.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS joins, dissenting.
The Court's opinion makes it plain that the petitioner was adjudicated guilty of criminal contempt through a proceeding from which the public was excluded. And the whole Court is agreed that, whether petitioner's right is founded on the Fifth or the Sixth Amendment, he possessed a right, guaranteed by the Constitution, that this adjudication of his guilt of crime be made in public.
But the Court concludes that despite this, the petitioner is not entitled to our judgment of reversal because
This requirement could not by the greatest stretch of the imagination be said to have been met here. Here petitioner's counsel by no means consented to the proceedings, but repeatedly made the most fundamental objections to the procedure whereby his client was being adjudicated guilty of crime, based on the Criminal Rules and on the very provision of the Constitution which the