sit particles could be accelerated by the use of a cyclotron, It was suggested that 12,000,000.volt protons were the maximum obtainable, Within a year the limitations previously accepted were challenged. At the present time there are, I believe, in operation in the United States at least four cyclotrons which accelerate protons to energies of about 400,000,000 volts. One need not have the insight of a great scientific investigator, nor the rashness of the untutored, to be confident that the prognostications now made in regard to the feasibility of a “compatible” color tele- vision system will be falsified in the very on vs. 479 HOFFMAN v. UNITED STATES. No. 513. ‘Argued April 25, 1951, Decided May 28, 1901 Samuel Hoffman was convicted in the United States District Court for the Eastern District of Pennsplvania, of criminal con- tempt for refusing to obey a federal court order requiring him to answer certain ques- tions asked in a grand jury Investigation, fand defendant sppeated, ‘The United States Court of Appeals for the Third Circuit, 185 2d 617, affirmed conviction and the Su- preme Court granted certiorari. The United Bates Supreme Court, Mr. Justice Clark, held. that witness could refuse to answer questions as to whether he had seen, talked to or knew the whereabouts of a certain per- son upon whom a subpana had been issued but not served requiring such fugitive per- son to appear before the grand Jury, on the ground that his answers might incriminate hhim of a federal offense, since the answers could have forged links in a chain of facts Imperiling defendant with convietion of a ‘federal crime. Reversed. Mr, Justice Reed dissented. 71 SUPREME COURT REPORTER 1. Grand Jury €=26 It is a necessity that prosecutors and courts alike be alert to repress any abuses of the investigatory power exercised by a grand jury, bearing in mind that while grand juries may proceed either upon their ‘own knowledge or upon the exemination of witnesses to inguire whether 2 crime ‘cognizable by the court has been committed, vyet the most valuable function of the grand Jury has been not only to examine into the ‘commission of crimes, but to stand between the prosecutor and accused. 2. Grand Jury €=25 Enforcement officials taking the initia- tive in grand jury proceedings and courts charged with their superintendence should be sensitive to the considerations making for wise exercise of such investigatory power, not only where constitutional issues may be involved but also where the non- coercive assistance of other federal agen- cies may render it unnecessary to invoke the compulsive process of the grand jury. 2. Witnesses 2293 ‘The constitutional guarantee against testimonial compulsion must be accorded liberal construction in favor of the right it was intended to secure, US.C.A Const. Amend. 5, 4, Witnesses €=207 ‘The constitutional protection that no person shall be compelled in criminal cases to be a witness against himself extends to answers that would in themselves support a conviction under a federal criminal stat- lute, and embraces those questions which would furnish a link in the chain of evi- dence needed to prosecute the claimant for a federal crime. U.S.C.A.Const. Amend, 5. 5, Witnesses €=297 ‘The constitutional protection that no person shall be compelled in criminal cases to be a witness against himself must be confined to instances where the witness has reasonable cause to apprehend danger from direct answer. U.S.C.A.Const. ‘Amend. 5.‘HOFFMAN v. UNITED STATES S15 ‘ites 18.Ce 81 6. Witnesses ¢=297, 208, ‘A witness is not exonerated from an- swering questions merely because he de- clares that in doing so he would incriminate himself, since it is for the court to say whether his silence is justified, U.S.CA. Const. Amend. 5. 7, Witnesses €=297 To sustain the privilege against self- incrimination, it need only be evident from implication of the question, in setting in which it is asked, that responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. USCAConst. Amend. 5. 8 Witnesses €=308 The trial judge in appraising & claim of selfincrimination in refusal to answer ‘questions must be governed as much by his Personal perception of peculiarities of the case as by the facs actually in evidence. US.CA.Const. Amend. 5. 9. Witnestes €=297 Witness before a federal grand jury investigating federal crime and “rackets” could refuse to answer questions concerning hhis occupation and business and as to whether he had seen, talked to, or knew the whereabouts of a certain person upon whom a subpoena tad been issued but not served requiring such fugitive person to appear before the grand jury, on the ground that his answers might incriminate him of 2 federal offense, since all of the answers could likely forge links in a chain of facts imperiling witness with conviction of a federal crime, U.S.CA.Const. Amend. 5. 10. Contempt ©=66(0) ‘Where contemror, two weeks after the contempt order, filed a petition to the dis- trlet court to vacate the contempt order on constitutional grounds and petition was di- rected to the power of the committing court to discharge the contemnor on ground that, ‘contemmor’s refusal to answer certain ques- tions in federal grand jury investigation ‘would violate the privilege against self- inerimination, the Court of Appeals, upon reviewing contempt order, should have con- sidered the petition to the district court to vacate the contempt order as a supplemental record, even though the petition was cap- tioned as a petition for reconsideration of allowance of bail. U.S.C.A.Const. Amend. 5; 18 USCA. § 401; FedRules Crim. Proc. rule 42(a), 18 US.CA. 1, Witnesses €=297 ‘The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the pri lege against self-incrimination may impose on society in the detection and prosecution of crime. U.S.C.A.Const. Amend. 5. Mr. William A. Gray, Philadelphia, Pa, for petitioner. Mr. John F. Davis, Washington, D. C, for respondent. Mr. Justice CLARK delivered the opinion of the Court. Petitioner has been convicted of eriminal contempt for refusing to obey a federal court order requiring him to answer certain questions asked in a grand jury investiga tion. He raises here important issues as to the application of the privilege against self inerimination under the Fifth Amendment, claimed to justify his refusal aa A special federal grand jury was con- vened at Philadelphia on September 14, 1950, to investigate frauds upon the Federal Government, including violations of the customs, narcotics and internal revenue quor laws of the United States, the White Slave Traffic Act, perjury, bribery, and oth- er federal criminal laws, and conspiracy to commit all such offenses. In response to subpoena petitioner appeared to testify on the day the grand jury was empaneled, and was examined on October 3. The pertinent terrogation, in which he refused to an- wer, follows: "Q. What do you do now, Mr. Hoft- man? A. I refute to answer,816 “Q. Have you been in the same under~ taking since the first of the year? A. I don't understand the question. “Q. Have you been doing the same thing you are doing now since the first of the year? A. I refuse to answer. 'Q. Do you know Mr. William Weis- berg? A. Ido. “Q. How long have you known him? A. Practically twenty years, I guess. “Q. When did you last see him? A. T refuse to answer. "Q. Have you seen him this week? A. [refuse to answer. "Q. Do you know that a subpoena has been issued for Mr. Weisberg? A. heard about it in Court “Q. Have you talked with him on the selephone this week? A. I refuse to an- “Q. Do you know where Mr. William Weisberg isnow? A. I refuse to answer.” 400 It was stipulated that petitioner dectined to answer on the ground that his answers might tend to incriminate him of a federal offense. Petitioner's claim of privilege was chal- lenged by the Government in the Federal District Court for the Eastern District of Pennsylvania, which found no real and sub- stantial danger of incrimination to petition- er and ordered him to return to the grand jury and answer. Petitioner stated in open ‘court that he would not obey the order, and on October § was adjudged in criminal con- tempt and sentenced to five months impris- onment. 18 U.S.C. § 401; Federal Rule of Criminal Procedure 42(a), 18 US.CA. Petitioner appealed to the Court of Ap- peals for the Third Cireuit, where the rec ford was docketed on October I1. After de- aial by the District Court of his request for tail pending appeal, petitioner on October 20 filed in that court a “Petition for Recon- Sderation of Allowance of Bail Pending ‘Appeal,” alleging that “on the basis of the facts contained in his affidavit, attached ‘71 SUPREME COURT REPORTER * + % he was justified in his refusal to answer the questions as aforesaid, or, in any event, that there is so substantial a question involved that your petitioner should be re- leased on bail * * *" In the accompany- ing afidavit petitioner asserted that “Hee assumed when he refused to answer the questions involved before the Grand Jury, that both it and the Court were cog- nizant of, and took into consideration, the facts on which he based his refusals to an- “Hie has since been advised, after his commitment, that the Court did not con- Sider any of said facts upon which he relied and, on the contrary, the Court considered ‘only the bare record [of the questions and answers as set out above). as ie “In the interest of justice and articular~ ly in aid of a proper determination of the above petition, he submits the following in ‘support of his position that he genuinely feared to answer the questions propounded: “(a) This investigation was stated, ia the charge of the Court to the Grand Jury, to cover “the gamut of all erimes covered by federal statute? * = * “(b) Afiant has been publicly charged with being a known underworld character, and a racketeer with a twenty year police record, including a prison sentence on a narcotics charge. * * © “(o) Affiant, while waiting t» testify before the Grand Jury, was photgraphed with one Joseph N. Bransky, heed of the Philadelphia office of the United States Bureau of Narcotics. * * * (a) Agiant was questioned concerning the whereabouts of a witness who had not been served with a subpoena and for whom fa bench warrant was sought by the Gov- ‘ernment prosecutor. * * * “On the basis of the above public facts as well as the facts within his own personal knowledge, affiant avers that he had a real fear that the answers to the questions asked by the Grand Jury would incriminate him of a federal offense.”‘HOFFMAN v. UNITED STATES a7 ‘Cites T18.C 614 Included as appendices to the affidavit were clippings from local newspapers, of dates current with the grand-jury proceed- ing, eporting the faces asserted in the afi davit. On October 23 the District Court Allowed bail, On the following day the petition for reconsideration of allowance fof bail, including afidavit and appendices, was filed in the Court of Appeals as a sup- plemental record on appeal. The Govern- ment moved to strike this matter on the ‘ground that it was not properly part of the appeal record. ‘The Court of Appeals granted the motion to strike and afirmed the conviction. 1950, 185 F.2d 617, 620. With respect to the questions regarding Weisberg, the court held unanimously that “the relationship be- tween possible admissions in answer t0 the uestions * * * and the proscription of {pertinent federal criminal statutes (18 U. S.C. § 371, 1501)] would need to be mach closer for usto conclude that there was real danger in answering." As to the questions concerning petitioner's business, the court observed that “It is now quite apparent that the appellant could have shown beyond auestion thatthe danger was not fanciful” In the court's view the data submited in the supplemental record. “would rather clearly be adequate to establish circum antally the likelihood that appellant’ as- sertion of fear of incrimination was not mere contumacy.” But the Court of Ap- peals conchuded, again unanimously, that the information offered in support of the petition for reconsideration of bail “was hot before the court when it found appellant in contempt, and therefore cannot be com fidered now." Thus limited to the record originally fled the majority of the court was of the opinion, with respect to the business questions, that “the witness here failed to give the judge any information which would allow the later to rule intli- gently on the claim of privilege for the Witness simply refused to say anything and © (Patricia) Blau +. United States, 1950, 340 US, 159, 71 SC. 228: Cirving) Blau. United States, 1951, $40 U.S. 282, TUSCe 801; Rogers v. United States, 1051, $40 US. 967, TL S.Ct 435; Green ‘ave no facts to show why he refused to say anything.” One judge dissented, con- cluding that the District Court knew that “the setting of the controversy” was “a grand jury investigation of racketeering and federal crime in the vicinity” and “should have adverted to the fact of com- mon knowledge that there exists a class of persons who live by activity prohibited by federal criminal laws and that some of these persons would be summoned as wit nesses in this grand jury investigation.” 8 Petitioner unsuccesstully sought rehear~ ing in the Court of Appeals, urging remand to the Distriet Court to permit reconsidera- tion of the conviction on the basis of data in the supplemental record. We granted certiorari, 1951, 340 U.S. 946, 71 S.Ct. 532. [1,2] This is another of five proceed- ings before this Court during the present ‘Term in each of which the privilege against self-incrimination has been asserted in the course of federal grand-jury investiga- tions* A number of similar cases have been considered recently by the lower courts. The signal increase in such litiga- tion emphasizes the continuing necessity that prosecutors and courts alike be “alert to repress” any abuses of the investigatory power invoked, bearing in mind that while grand juries “may proceed, either upon their own knowledge or upon the examina- tion of witnesses, to inquire * * * whether a crime cognizable by the court hhas been committed”, Hale v. Henkel, 1906, 201 U.S. 43, 65, 26 S.Ct. 370, 375, SOLES. 652, yet “the most valuable function of the grand jury [has been} not only to examine into the commission of crimes, but to stand between the prosecutor and the accused,” id, 201 USS. at page 59, 26 S.Ct. at page 373, 50 LEd. 652. Enforcement officials taking the initiative in grand-jury pro- ceedings and courts charged with their superintendence should be sensitive to the considerations making for wise exercise of such investigatory power, not only where borg v. United States, 3 Cir, 1951, 187 F.2d 85, 27, petition for writ of ection rari pending. (See $41 U.S. 944, 71 8.0 1013]818 constitutional issues may be involved but also where the noncoercive assistance of other federal agencies may render it un- necessary to invoke the compulsive process of the grand jury. [3] The Fifth Amendment declares in part that "No person * * * shall be compelled in any Criminal Case to be a witness against himself”, This guarantee against testimonial compulsion, like other provisions of the Bill of Rights, “was added to the original Constitution in the convic- tion that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed” Feldman v. United States, 1944, 322 US. 487, 499, 64 S.Ct 1082, 1083, $8 L.Ed. 1408 “This provision of the Amendment must be accorded liberal construction in favor of the right it was intended to secure, Countelman v. Hitch cock, 1892, 142 US. $47, 562, 12 S.Ct. 195, 197, 35 LEd, 1110; Arndstein v. McCarthy, 1920, 254 US. 71, 72-73, 41 S.Ct. 26, 65 L. Ed. 138, [4-8] The privilege afforded not only extends to answers that would in them- selves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patricia) Blau v. United States, 1950, $40 U.S. 159, 71 S.Ct. 223, But this protection must be confined to instances where the witness has reason- able cause to apprehend danger from a direct answer. Mason v. United States, 1917, 244 US. 362, 365, 37 S.Ct, 621, 622, 61 LLEA. 1198, and cases cited. The witness ig not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimi- nation. It is for the court to say whether his silence is justified, Rogers v. United States, 1951, 340 US. 367, 71 S.Ct. 438, and to require him to answer if “it clearly appears to the court that he is mistaken.” ‘Temple v. Commonwealth, 1880, 75 Va. 892, ‘71 SUPREME COURT REPORTER 809. However, if the witness, upon inter- posing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which itis asked, sor that a responsive answer to the ques- tion or an explanation of why it cannot be answered might be dangerous because in- jurious disclosure could result. The trial Jjudge in appraising the claim “must be gov- termed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” See Taft, J, in Ex parte Irvine, C.C.S.D.Ohio, 1896, 74°F. 954, 960. What were the circumstances which the District Court should have considered in ruling upon petitioner's claim of privilege? ‘This is the background as indicated by the record: ‘The judge who ruled on the privilege had ‘himself impaneled the special grand jury to investigate “rackets” in the district. He hnad explained to the jury that “the Attor- ney General's offce has come into this dis- trict to conduct an investigation * * * [vhat] will run the gamut of all crimes covered by Federal statute.” “If rackets infest or encrust our system of govern- ment," he instructed, “just as any blight at- tacks any other growth, it withers and dies. + * Subpoenas had issued for some twenty witnesses, but only eleven had been served; as the prosecutor put it, he was “having trouble finding some big shots.” Several of those who did appear and were called into the grand-jury room before peti- tioner had refused to answer questions until ordered to do so by the court. The prose- cutor had requested bench warrants for eight of the nine who had not appeared the first day of the session, one of whom was William Weisberg. Petitioner had admitted having known Weisberg for about twenty years. In addition, counsel for petitioner hhad advised the court that “It has been‘HOFFMAN v. UNITED STATES 819 ‘tena 71 8Ce 814 broadly published that [petitioner] has a police record” [9] The court should have considered, fn connection with the business questions, that the chief occupation of some persons involves evasion of federal criminal laws, and 420 that truthful answers by petitioner to these questions might have disclosed that he was engaged in such proscribed activity. ‘Also, the court should have recognized, in considering the Weisberg questions, that one person with a police record summoned to testify before a grand jury investigating the rackets might be hiding or helping to hhide another person of questionable repute sought as a witness. To be sure, the Gov- ferment may inquire of witnesses before the grand jury as to the whereabouts of un- located witnesses; ordinarily the answers to such questions are harmless if not fruit- less. But of the seven questions relating to Weisberg (of which three were an- , three were designed to draw in- in as to petitioner's contacts and connection with the fugitive witness; and the final question, perhaps an afterthought of the prosecutor, inquired of Weisberg’s whereabouts at the time. All of them could easily have required answers that would forge links in a chain of facts imperiting petitioner with conviction of a federal crime, The three questions, if answered affirmatively, would establish contacts be- tween petitioner and Weisberg during the crucial period when the latter was eluding the grand jury; and in the context of these inguiries the last question might well have called for disclosure that Weisberg was hiding away on petitioner's premises or with his assistance. Petitioner could rea sonably have sensed the peril of prosecution for federal offenses ranging from obstruc- tion to conspiracy. In this setting it was not “perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer{s] cannot possibly have such tendency” to incriminate. ‘Temple v. Commonwealth, 1880, 75 Va. 892, 98, cited with approval in Counselman v. Hitchcock, 1892, 142 U.S. 547, 379-580, 12 S.Ct. 195, 204, 36 LEA 1110, See also, Amidstein v. MeCarthy, 1920, 254 US. 71, 41 S.Ct. 26, 65 LEA. 138, ‘This conclusion is buttressed by the sup- plemental record. It showed that petitioner hhad a twenty-year police record and had ‘been publicly labeled an “underworld char- acter and racketeer”; that the Senate Crime Investigating Committee had placed his name on a list of “known gangsters’ from the Philadelphia area who had made Miami Beach their headquarters; that Philadelphia police officials had described hhim as “the king of the shore rackets who lives by the gun”; that he had served a sentence on a narcotics charge; and that his previous conviction was dramatized by 1 picture appearing in the local press while he was waiting to testify, in which petition- er was photographed with the head of the Philadelphia office of the United States Bureau of Narcotics in an accusing pose. [10] Tt appears that the petition which comprised the supplemental record, though captioned a “Petition for Reconsideration of Allowance of Bail Pending Appeal,” was by its terms an application to the District Court to vacate the contempt order on con- stitutional grounds, and alternatively a sec- ‘ond motion for bail. Clearly this petition, filed but two weeks after the contempt order, ‘was directed to the power of the committing: court to discharge the contemnor for good cause—a power which courts should be so- Jicitous to invoke when important constitu- tional objections are renewed, Cf. Gouled x, United States, 1921, 255 U.S. 298, 41 S.Ct. 261, 65 LLEd. 647, ‘The ends of justice re- quire discharge of one having such a right whenever facts appear sufficient to sustain the claim of privilege. Accordingly the sup- plemental record should have been consid- ‘ered by the Court of Appeals. [11]. For these reasons we cannot agree with the judgments below. If this result adds to the burden of diligence and efi ciency resting on enforcement authorities, any other ‘20 conclusion would seriously com- promise an important constitutional liberty.820 “The immediate and potential evils of ‘compulsory self-disclosure transcend any difficulties that the exercise of the privilege ‘may impose on society in the detection and prosecution of crime.” United States v. White, 1944, 322 US. 694, 698, 64 S.C 1248, 1251, 88 L.Ed. 1542, Pertinent here is the observation of Mr. Justice Brandeis for this Court in MeCarthy v. Arndstein, 1924, 266 US. 34, 42, 43 S.Ct, 16, 17, 69 L. Ed. 158, “If Congress should hereafter con- clude that a full disclosure * * * by the witnesses is of greater importance than the possibility of punishing them for some ‘crime in the past, it can, as in other cases, confer the power of unrestricted examina- tion by providing complete immunity.” Reversed, Mr. Justice REED dissents. He agrees with the conclusions reached by Judges Goodrich and Kalodner as expressed in the opinion below. HAMMERSTEIN v. SUPERIOR COURT OF CALIFORNIA et al. No. 421, Argued March 9, 1951, Decided May 28, 1951. Paternity action brought in the Superior Court of California against Reginald Ham- merstein, Reginald Hammerstein also fled {in the Distriet Court of Appeal a petition for a writ of prohibition. ‘To review a judg- tment of the District Court of Appeal of the State of California denying the petition for ‘2 writ of prohibition and to review a judg- ment of the Supreme Court of California Aenying a petition for a writ of certiorari to rerlew the Supreme Court proceedings, Reginald Hammerstein brought certiorari, ‘The Supreme Court, Per Curlam, held that petitioner could have obtained review of the final adjudication of the merits by appealing TL SUPREME COURT REPORTER, from the Superior Court judgment and that hhence Supreme Court should not exercise fits jurisdiction to review judsment of Dis- trict Court of Appeal denying application for writ of prohibition, though such judgment was based on decision of a federal question. Writ dismissed. Mr, Justice Black, Mr, Justice Douglas, Mr. Tustice Jackson and Mr. Justice Clark, dls- ‘sented, fused to grant a writ of certiorari from de- fault judgment entered by Superior Court because petitioner had failed to utilize the proper channel of review by appealing from the judgment, United States Supreme Court had no jurisdietion to review the proceedings arising from the default judg- ment, since jurisdiction of Supreme Court to review state court judgments extends only to final judgments rendered by the highest court of a state in which a decision could be had. 28 US.CA. § 1257. 2. Courts €=394(1) ‘Where decision of a federal question ‘was essential to denial by California Dis- trict Court of Appeal of an application for writ of prohibition, on certiorari to review such judgment of District Court of Appeal, United States Supreme Court would not consider the force of statement of Cali- fornia Supreme Court susceptible of the in- terpretation that its denial of hear from the judgment of the District Court fof Appeal was based upon an adequate state ground, since the judgment properly before United States Supreme Court was that of the District Court of Appeal. 3. Courts €394(1) Where decision of a federal question was essential to denial by California Dis- trict Court of Appeal of an application for writ of prohibition, United States Su- preme Court had jurisdiction to review such judgment of District Court of Appeal denying the application. 4. Courts ©3971 The issuance of the writ of certiorari is discretionary and hence the presence of