Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287 (1959)

Anonymous Nos. 6 and 7 v. Baker

No. 378

Argued March 25, 1959
Decided June 15, 1959
360 U.S. 287

APPEAL FROM THE COURT OF APPEALS OF NEW YORK

Syllabus

Appellants, who are licensed private detectives and private investigators, but not attorneys, were convicted of contempt for refusal to answer pertinent questions put to them as witnesses summoned before a New York judge who, pursuant to court order, was conducting a nonadversary, nonprosecutorial, preliminary factfinding inquiry, analogous to a grand jury proceeding, into alleged unethical practices of attorneys and others acting in concert with them. Appellants did not plead the state privilege against self-incrimination, but based their refusal to testify solely on the fact that their counsel was required to remain outside the hearing room while they were being interrogated, though the judge had expressed his readiness to suspend the questioning whenever appellants wished to consult with counsel. It was customary for such proceedings to be kept secret, like grand jury proceedings, and this practice was sanctioned by New York statute and by the court order authorizing the inquiry.

Held:

1. Since the validity under the Federal Constitution of the state statute pertaining to such proceedings was not "drawn into question" or passed upon by the state courts in this case, this Court lacks jurisdiction of this appeal under 28 U.S.C. § 1257(2), but certiorari is granted. P. 290.

2. Petitioner’s conviction of contempt for refusal to testify in these circumstances did not offend the Due Process Clause of the Fourteenth Amendment. In re Groban, 352 U.S. 330. Pp. 290-298.

(a) The requirement of the authorizing court order that the inquiry be private and the exclusion of counsel for the witnesses from the hearing room were not procedural innovations, but were in accordance with established state policy. Pp. 290-294.

(b) To declare such a policy unconstitutional would necessitate ignoring weighty considerations supporting it, and would require going far beyond anything indicated by this Court’s past "right to counsel" decisions under the Fourteenth Amendment. P. 294-296.

(c) Notwithstanding an informal statement made by a staff assistant, the record in this case does not warrant a conclusion that appellants were being questioned not merely as witnesses, but with an eye to their future prosecution. Pp. 296-298.

4 N.Y.2d 1034, 1035, 152 N.E.2d 651, affirmed.