PERTINENT INQUIRY

To the Editors of the CRIMSON:

Since the CRIMSON during the current academic year has become the daily law journal of the Cambridge community its readers may be interested to hear briefly of a decision of the United States Court of Appeals of the District of Columbia rendered on February 13, 1953. The case is Bowers v. United States and has just been reported in 202 Fed. 2d 447. The opinion of the court offers consolation to those persons who believe that the law provides greater protection to the recalcitrant witness than some of our more articulate patriots have supposed that it does.

As lawyers might have expected, the protection which the court now has provided the witness is not based on any explicit constitutional provision. The court has not, in other words, extended the scope of the privilege against self-incrimination or expanded the concept of free speech. It has simply held that the recalcitrant witness may not be convicted of contempt when the government fails to establish affirmatively that the question which he failed to answer was "pertinent to the question under inquiry." In the Bowers case the application of this principle meant that a defendant summoned before the Kefauver Committee could not be convicted of contempt for his refusal to state what business he carried on in Chicago in 1927, to inform the Committee how he had earned $5000 in 1942, or to say whether he know William Johnson, the president of four dog tracks in Florida. These questions, together with others, the court stated did not appear on their face or in context "to pertain to the investigation which was being conducted in 1951 into the activities of organized crime in interstate commerce." Accordingly, the trial court should have directed a verdict of acquittal.

Of no less importance than the court's insistence that the government, in the contempt proceedings, has the burden of proving pertinence, is the explicit statement that the witness's failure to assign lack of pertinence as his reason for refusing to answer the questions did not bar him from raising that issue in the contempt proceedings. "The answer to such a suggestion," said the court, "is that the right to refuse to answer a question which is not pertinent is not a personal privilege, such as the right to refrain from self-crimination, which is waived if not seasonably asserted; but that pertinency is an element of the criminal offense which must be shown by the prosecution."

One word of caution should be added. Those who find encouragement in the Bowers decision must remember that it does not deny an investigating committee the right to ask questions which are not pertinent to the subject matter under inquiry. All that it holds is that the witness who refuses to respond to such questions is not guilty of criminal conduct. That holding, though limited, should not be overlooked by persons who are concerned with the impact of congressional investigations on American universities. Mark DeW. Howe '28