him by the client or acquired during their professional relation unless he is authorized to do so by the client himself (5 Am. Jur. 286).

(b) Arnold v. Chesebrough (1886) 41 F. 74 infers that this is not an absolute privilege. In this case an attorney's refusal to produce evidence was upheld on the ground that there was nothing to show that it was impossible to serve the subpena duces tecum on the person from whom the attorney received the correspondence.

(c) U. S. v. Philadelphia and R. Ry. Co. (1915) 225 F. 301: Records cannot be cloaked with immunity or privilege merely by depositing them in the legal department of a company. In fact, an individual is responsible for producing records, even if the office through which he acts is one of joint responsibility (U. S. v. Fleishman (1950), 339 U. S. 349; U. S. v. Bryan (1950), 339 U. S. 323).

(d) Bowles v. Insel (1945) 148 F. 2d 91, 93: Records required by law to be kept are not privileged. See also a discussion of this in Wilson v. U. S., infra.

(e) Wilson v. U. S. (1911) 221 U. S. 361: A person has no privilege, constitutional or otherwise, against the compulsory production of records belonging to another. (See pp. 379-386.)

(f) McMann v. Engel (1936) 16 F. Supp. 446, 448: There are exceptions to the above rule where a relationship raising a privilege exists such as attorney and client.

V. RECENT CITATIONS

In addition to the resolutions or reports already cited in connection with prosecutions or particular problems, we invite attention to the following:

House Reports Nos. 2849, 2855, 2856, 2857, and 2858, 81st Congress, from the House Committee on Un-American Activities, citing Philip Bart, James J. Matles, Thomas J. Fitzpatrick, Thomas Quinn, and Frank Panzino, respectively.

House Report No. 1293, 82d Congress, from the House Committee on Un-American Activities, citing Sidney Buchman.

Senate Reports Nos. 30 and 88, 82d Congress, from the Senate Special Committee to Investigate Organized Crime in Interstate Commerce, citing Walter M. Pechart and David N. Kessel, respectively. In addition, the following reports from this special committee are of interest because they contain memoranda from committee counsel or associate counsel certifying that the contempts complained of were, in their opinions, punishable as a matter of law: Senate Reports Nos. 200, 201, 202, 205, 206, and 207, 82d Congress, citing Frank Erickson, Joseph Doto, alias Joe Adonis, Stanley Cohen, William G. O'Brien, Ralph J. O'Hara, and John Croft, respectively. House Report No. 1748, 82d Congress, from the House Committee on Ways and Means, citing Henry W. Grunewald exemplifies more the difficulty a committee may experience with the counsel of a witness, than the recusancy of the witness. Judge Alexander Holtzoff of the District Court, District of Columbia, fined Grunewald $1,000 and suspended a 90-day jail sentence which he later revoked. The Washington Star of June 4, 1953, carried the following account: The judge cited as "mitigating circumstances" the "fantastically bad" advice given Grunewald by his former attorney, William Power Maloney of New York. In a blistering denunciation of Mr. Maloney's tactics before the House Ways and Means Subcommittee delving into Grunewald's connection with high Internal

Revenue Bureau officials, which called Grunewald as a witness in 1951, Judge Holtzoff declared: "Were it not for the fact that it isn't customary to prosecute" defense counsel in such matters "he could have been indicted for aiding and abetting contempt."

NO JUSTIFICATION FOR ADVICE

The jurist was alluding to Mr. Maloney's action in repeatedly directing Grunewald not to answer questions posed by the subcommittee even to the extent of refusal to divulge his name.

"There is no doubt that this was sheer defiance of the committee," the judge stated. "On the other hand," he said, 'the witness was accompanied by a supposedly competent counsel. He was confronted by a situation which placed bim

between Scylla and Charybdis."

The jurist continued: "He received very bad advice-so bad as to be fantastic. There was no justification to advise that he refuse to answer.

"The fact that a defendant is advised by counsel to commit a criminal act is no defense. But in determining sentence it may be mitigating. The average client feels he has a lawyer who knows what he is doing.

"The court will consider this mitigating circumstance.'

A salutary result probably could have been obtained by requiring Mr. Maloney to appear before the bar of the House to answer for his actions.

VI. RIGHTS OF A WITNESS

There are few safeguards for the protection of a witness before a congressional committee. However, the Supreme Court claims it has not hesitated to protect the rights of a private individual when it found Congress was acting outside its legislative role (Tenney v. Brandhove (1951), 341 U. S. 367, 377). In committee, his treatment usually depends upon the skill and attitude of the chairman and the members. Since an investigation by a committee is not a trial, the committee is under no compulsion to make the hearings public. (See Eberling, Congressional Investigation (1928), pp. 288, 390; 3 Hinds' Precedents of the House of Representatives (1907), sec. 1732; and Ex parte Nugent (1848) 18 Fed. Cas. 483.) For the same reason the committee is not required to make the inquiry speedy. (See Dimock, Congressional Investigating Committees (1929), p. 158, and the sixth amendment to the Constitution of the United States.) Self-incrimination has been treated separately in part III. 1. Searches and seizures

The question of unreasonable searches and seizures, with regard to a committee investigation, resolves into a determination of the committee's jurisdiction in making the investigation, and whether the required testimony and the documents of the witness are pertinent thereto. (See Dimock, op. cit. supra, p. 153.) Where the committee has jurisdiction, the congressional attitude at times in the past has been that a broad and sweeping inquiry into papers and documents could be made without specificity and that this would not be hindered or prevented by the fourth amendment. (See Eberling, op. cit. supra, pp. 226, 232-241, 245, and 285; Dimock, op. cit. supra, pp. 153-154, and 155-156.) There has been a later tendency, however, toward definiteness or careful designation in subpenaing the papers and records desired (Dimock, op. cit. supra, p. 155). A more recent writer states that the fourth amendment serves as "a definite check on the methods which the committees may employ" and that "neither House of Congress has any 'general power' to search into, or compel disclosures concerning private affairs." (See McGeary, The Develop

69222 0-56-pt. 3—17

ment of Congressional Investigative Power, 1940, p. 106.) This assertion is supported by the decision in Strawn v. Western Union Telegraph Co. (Sup. Ct. D. Col. 1936, 3 L. W. 646), holding that response to a committee subpena could be restrained on the basis that it constituted an unreasonable search and seizure under the fourth amendment and "went way beyond any legitimate exercise of the right of the subpena duces tecum." A witness confronted with a broad subpena, therefore, can appeal to the courts for aid but his appeal must be timely, for once his papers are in the possession of the committee, the courts will be reluctant to interfere with their use (Hearst v. Black (1936), 87 F. 2d 68, 71).

Where officers of an association are directed to produce books and papers, they cannot severally thwart with immunity the demands of the investigating committee by denying possession of the requested items or the authority to produce them. See United States v. Fleischman (1950) (339 U. S. 349). Further, records required by law to be kept are not privileged (Bowles v. Insel (1945), 148 F. 2d 91, 93, and United States v. Wilson (1911), 221 U. S. 361).

2. Disgracing and inconveniencing questions

A witness may not refuse to answer a question upon the ground that his testimony may tend to disgrace or otherwise render him infamous. Revised Statutes, section 103 (U. S. C. 2: 193), states:

No witness is privileged to refuse to testify to any fact, or to produce any paper, respecting which he shall be examined by either House of Congress, or by any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or by any committee of either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous.

Nor may a witness be excused from supplying information properly within the scope of the inquiry by the fact that the testimony sought by the committee will militate against the interest of the witness in a pending suit. (See 6 Hinds' Precedents *** sec. 338.) He cannot justify his refusal to answer inquiries on the refusal of the committee to keep his testimony secret (U. S. v. Orman (1953), 207 F. 2d 148, 159). However, the Supreme Court has pointedly warned against the conversion of investigations into mere harassment of persons and beliefs (U. S. v. Rumely (1953), 345 U. S. 41, 43–44). 3. Right to counsel

***

The privilege of a witness to have advice of counsel depends upon the committee, and the rule has varied a good deal (Dimock, op. cit. supra, 159–160). In some cases, presence of or consultation with counsel has been permitted (Dimock, op. cit. supra; 3 Hinds' op. cit. supra, secs. 1735, 1772, 1788). In others, it has been refused (Dimock, op. cit. supra; 3 Hinds' Precedents sec. 1837). It has been urged, as a matter of fairness, that counsel should be allowed to appear, and it has been said that the tendency is in this direction (Dimock, op. cit. supra, pp. 161-163; see also McGeary, op. cit. supra, p. 80, n. 88). But in the final analysis, the matter is one which the committee has the power to determine for itself; it is "a matter of privilege, not of right" (Eberling, op. cit. supra, p. 390). (See also 3 Hinds' Precedents * * * sec. 2501.)

4. Cross-examination

Whether a witness or his counsel may cross-examine other witnesses depends upon the attitude of the committee. It has been said that the custom is to permit little or no cross-examination (McGeary, op. cit. supra, p. 80). For an instance recounted where cross-examination was permitted, see Dimock (op. cit. supra, p. 160). And in one case, the committee permitted counsel to communicate questions through some member of the committee but not to ask them directly (Dimock, op. cit. supra; 3 Hinds' Precedents *** sec. 1788).

It has been contended that the privilege of cross-examination should be accorded those who are being investigated or those representing issues under investigation (McGeary, op. cit. supra, pp. 80-81; also quoting then Professor (now Justice) Frankfurter, Dimock, op. cit.. supra, pp. 161-163). For cases where this has been done, see Hinds' Precedents** * (secs. 1620, 1644).

5. Presenting written statements or calling witnesses

Whether or not a witness may present a preliminary written statement by himself or counsel depends generally upon the desires of the committee (Dimock, op. cit. supra, pp. 158-159; McGeary, op. cit. supra, pp. 79-80). This is also demonstrated by the recent successful prosecution of Gerhart Eisler for contempt in refusing to be sworn as a witness until he had made a brief statement. Because these statements are sometimes needlessly long or have little relevance some committees, in order to expedite matters, have refused witnesses the privilege (McGeary, op. cit. supra). Where the privilege is granted, the reading of the statement may be interrupted by interrogations which are aimed at clarification (ibid). The Legislative Reorganization Act of 1946 (sec. 133), provides that

Each standing committee shall, so far as practicable, require all witnesses appearing before it to file in advance written statements of their proposed testimony, and to limit their oral presentation to brief summaries of their argument.

A witness may call other witnesses in his behalf, as a rule, upon permission accorded him by the committee, but he has no inherent right to do so (Dimock, op. cit. supra, p. 159). For instances where production of testimony was allowed, see 3 Hinds' Precedents *** (secs. 1741, 1787). In investigating charges of an impeachable offense, a committee permitted the accused to have process to compel testimony (3 Hinds' Precedents *** sec. 1736). In one case, an investigating committee permitted a person implicated by prior testimony to appear and testify (3 Hinds' Precedents *** 1789).

6. Pertinency of the testimony

sec.

Pertinency of evidence presented before a congressional committee is not determined by its probative value. This matter received. attention in Sinclair v. United States (1929) (279 U. S. 263, 296), wherein the Court said:

Appellant earnestly maintains that the question was not shown to be pertinent to any inquiry the committee was authorized to make. The United States suggests that the presumption of regularity is sufficient without proof. But, without determining whether that presumption is applicable to such a matter, it is enough to say that the stronger presumption of innocence attended the accused at the trial. It was therefore incumbent upon the United States to plead and show that the question pertained to some matter under investigation. ***

S. Doc. 99, 83-2

The question of pertinency under section 102 (U. S. C. 2:192) was rightly decided by the court as one of law. It did not depend upon the probative value of evidence. That question may be likened to those concerning relevancy at the trial of issues in court, and it is not essentially different from the question as to materiality of false testimony charged as perjury in prosecutions for that crime. Upon reasons so well known that their repetition in unnecessary, it is uniformly held that relevancy is a question of law (p. 298).

Where an indictment charges unlawful refusal to answer questions "all of which were pertinent to the question then under inquiry before the subcommittee," pertinency is an element of the criminal offense which must be shown by the prosecution*** (Bowers v. U. S. (1953), 202 F.2d 447, 452).

7. Defamation by a congressional witness

Defamatory testimony before a regularly constituted legislative body, or a committee thereof, making a legally authorized investigation, is generally held to be subject to the same rules of privilege as similar testimony in courts of justice. If the testimony is material to the inquiry, or is responsive to a question asked by the members of a committee, it is generally privileged absolutely (12 A. L. R. 1255 citing Terry v. Fellows (1869) 21 La. Ann. 375; Wright v. Lothrop (1889) 149 Mass. 385; Sheppard v. Bryant (1906) 191 Mass. 591). See also McLaughlin v. Charles (1891) (60 Hun. 239). Compare Blakeslee v. Carroll (1894) (64 Conn. 223).

8. The oath

While the administration of an oath to a witness adds dignity to a congressional hearing, it is not essential. If administered, it comes within the purview of Revised Statutes, section 101 (U. S. C. 2:191), which reads:

The President of the Senate, the Speaker of the House of Representatives, or a chairman of any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or of a Committee of the Whole, or of any committee of either House of Congress, is empowered to administer oaths to witnesses in any case under their examination.

Any Member of either House of Congress may administer oaths to witnesses in any matter depending in either House of Congress of which he is a Member, or any committee thereof.

In case of false testimony after taking an oath, a witness may be prosecuted under United States Code 18:1621, which reads:

Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the Untied States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both.

A correction in testimony, subsequently made, will not prevent a verdict of guilty of perjury. See United States v. Norris (1937) (300 U. S. 564). However, it is essential that the committee or subcommittee be duly constituted at the time that the perjured testimony is given and that quorum requirements be met (Christoffel v. United States (1949), 338 U. S. 84). The failure to state the name and the authority of the person who administered the oath to a congressional witness does not invalidate an indictment for perjury (U. S. v. Debrow (1953), Docket 51, 1953-54 term, 22 L. W. 4019).