United States v. Bryan/Dissent Black
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER concurs, dissenting.
18 U.S.C. § 3486, 18 U.S.C.A. § 3486, provides that no testimony given by a witness before any committee of either house 'shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony.' The Court admits that use of such testimony in convicting Bryan for wilful failure to produce records violated the 'literal language' of § 3486, but declines to give effect to that language. I dissent from the Court's refusal to abide by this congressional mandate.
The statutory exception of 'prosecution for perjury' shows that the attention of Congress was focused on whether committee testimony should be admissible in any special type of criminal prosecution. Yet the Court now reads the statute as if Congress had forbidden the use of committee testimony 'except in a prosecution for perjury or for failure to produce records.' Such extensive judicial law-making is particularly questionable when used to restrict safeguards accorded defendants in criminal cases. Moreover, this statute springs from Congress' recognition of the constitutional privilege against compulsory self-incrimination. The Court's narrowing of the statute makes a radical departure from the principle underlying previous interpretations of other immunity legislation.
The reasons given by the Court for its amendment of the statute have an anomalous basis: the Court feels compelled to alter the clear language of § 3486 in order not to 'subvert the congressional purpose' which it admits has already been irrevocably frustrated by the decision in Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110.
Moreover, the statutory language is so clear and precise that dubious legislative history cannot contradict it. And no part of that history even tends to show that Congress meant to permit use of a witness' testimony to convict him of any crime other than perjury. There is a justifiable reason for the perjury exception. The crime consists of the testimony itself, without which no prosecution would be possible. Not so with default in producing papers. That crime is based not on a witness' testimony but rather on his failure to produce-conduct which can be proved by members of a committee, clerks, or spectators. There is therefore no basis for saying that application of the statute as Congress wrote it would lead to 'absurd conclusions' by encouraging the 'refusal of witnesses to answer questions or produce papers.'
As for other essential elements of the crime, such as power to produce, they cannot be proved by evidence extracted from a defendant under compulsion. A witness summoned to testify and produce papers is no less entitled to invoke the protection of this statute and of the Fifth Amendment's privilege against self-incrimination than is any other defendant. One who has failed to produce certainly could not be compelled to answer questions concerning his power to produce, thereby making him a 'witness against himself.' If application of the statute as Congress wrote it would lead to 'absurd conclusions,' so would the Fifth Amendment.
The Court finds comfort in the statement that the Committee testimony of witnesses is 'uniformly printed in the reports of committees recommending contempt action' to the houses of Congress. However extensive this practice may be, it would not justify the use of such evidence in a criminal trial. By its own terms 18 U.S.C. § 3486, 18 U.S.C.A. § 3486, is expressly limited to 'criminal proceedings in any court.' 
For these reasons the judgment should be reversed and the cause remanded for a new trial.
^1 This distinction between criminal trials and contempt proceedings at the bar of Congress is eminently reasonable in view of the practical differences between the two. See dissenting opinion in United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739. For a discussion of congressional contempt procedures, see Eberling, Congressional Investigations 179 and passim (Columbia University Press, 1928).