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sixth amendment incorporates "all the exceptions that may legitimately be found, developed, or created therein." Objection to the holding in Stein, then, is based not upon any disagreement with the Court's refusal to be bound by the "subtleties, anomalies and ramifications" of the hearsay rule, but because the result is thought to be eminently unfair and thus a denial of due process." If the Court were to reach the same result in a federal criminal case, it would seem equally wrong.28

Where the use of evidence not subject to cross-examination was more squarely before the Court in In re Oliver," the Court developed the point more fully and reasoned carefully to its conclusion. In that case, when a Michigan judge, acting as a one-man grand jury and relying at least in part on the testimony of an earlier witness with whom defendant was not confronted, sentenced the defendant for contempt for giving allegedly false and evasive testimony, the Court held the practice a denial of due process. As Justice Black said on this aspect of the case:

We further hold that failure to afford petitioner a reasonable opportunity to defend himself against the charge of false and evasive swearing was a denial of due process of law. A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense-a right to his day in court-are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel. (Emphasis added.) 3o A more direct holding seems scarcely necessary. Whatever may be the extent to which the attendance of an accused may be dispensed with during some portion of the trial proceedings," it cannot be doubted that due process in criminal trials, in state as well as in federal courts, requires a fair opportunity for cross-examination.

Civil Proceedings: Litigation Between Private Parties.

30

It might be thought that private litigation involving issues of contract, property, or tort, for example, would not raise constitutional

26. See note 21 supra.

27. The Stein case has been much criticized. E.g., Garfinkel, The Fourteenth Amendment and State Criminal Proceedings-"Ordered Liberty" or "Just Deserts," 41 Calif. L. Rev. 672 (1953); Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U. Chi. L. Rev. 317 (1954). See also Scott, State Criminal Procedure, The Fourteenth Amendment, and Prejudice, 49 Nw. U.L. Rev. 319 (1954).

28. Cf. Krulewitch v. United States, 336 U.S. 440 (1949); Kirby v. United States, 174 U.S. 47, 55-56 (1899). But see Delli Paoli v. United States, 352 U.S. 232 (1957); Lutwak v. United States, 344 U.S. 604 (1953).

29. 333 U.S. 257 (1948).

30. Id. at 273.

31. E.g., Snyder v. Massachusetts, 291 U.S. 97 (1934).

issues involving confrontation and cross-examination. And the reported cases might appear to support such a conclusion because the right of cross-examination is ordinarily not discussed in terms of constitutional right. Rather, the matter is dealt with as a question of evidence, specifically as an application of the hearsay rule. Clearly, due process is no less required in civil than in criminal proceedings, for manifestly there is no hearing when the party does not know what evidence is offered or considered and is not given an opportunity to test, explain, or refute. . . . All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense.3

32

Although there are, to be sure, differences of detail in the demands of fairness in the civil as opposed to the criminal forum, it has never been suggested that fairness of procedure is not essential. Thus, where an opportunity to cross-examine is an ingredient of fairness, as it ordinarily is, it would seem to be an indispensable part of due process. It would scarcely be argued that one who may be directly and adversely affected by the outcome of a civil suit is not entitled to fair notice and reasonable opportunity to present his case. The opportunity to answer of course includes the right of the defendant to know the evidence against him and an opportunity to challenge by cross-examination. That this requirement is formally enforced as a rule of evidence rather than as an articulated principle of constitutional law makes no difference. As already pointed out, the central purpose of the hearsay rule (of which the right of cross-examination is but the specific embodiment) is firmly embedded in the concept of fairness. It seems inconceivable that a private litigant would assert his right to be heard ex parte, or that he would ask the court to consider his own summaries of statements made to him in confidence by persons whose names he would not disclose to the court. One can well imagine that a commonlaw judge would be sufficiently outraged by such a request to consider the summary dismissal of the cause of action of a complainant who based his claim on such foundation.

The result, however, might be, and indeed often has been, different where only one of the parties to a civil proceeding was a private in

32. Interstate Commerce Comm'n v. Louisville & Nashville R.R., 227 U.S. 88, 93 (1913). See also Reilly v. Pinkus, 338 U.S. 269, 276 (1949); Carter v. Kubler, 320 U.S. 243, 247 (1943); Ohio Bell Tel. Co. v. Public Util. Comm'n, 301 U.S. 292, 300, 304 (1937); West Ohio Gas Co. v. Public Util. Comm'n (No. 1), 294 U.S. 63, 68 (1935); Southern Ry. v. Virginia, 290 U.S. 190, 195 (1933); Chicago, M. & St. P. Ry. v. Polt, 232 U.S. 165, 168 (1914).

dividual and there was arrayed against him an official representative of government pleading special exception to the uniformly accepted rules of fairness in the name of national security.

III

FAIRNESS VERSUS NATIONAL SECURITY: THE UNEQUAL CONTEST

Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. . . .

Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.33

Presumably no one would quarrel with Justice Jackson's tribute to the unyielding and inexorable quality inherent in concepts of procedural due process. Indeed, even during the stress of wartime emergency, the principle of procedural fairness has stood up well." Accordingly, there is strange irony in the inescapable conclusion that procedural due process has since World War II repeatedly given way to the flatly asserted demands of national security. Examination of this phenomenon prompts a threefold inquiry. First, we shall notice the various situations in which rights of procedural due process (i.e., in this context, the principles of notice and confrontation) have been relinquished to the exigent demands of national security. Second, we shall inquire into the cost, if any, exacted in terms of lessened national

33. Justice Jackson, dissenting, in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 224-25 (1953). Or, as Justice Frankfurter put it, "The history of American freedom is, in no small measure, the history of procedure." Malinski v. New York, 324 U.S. 401, 414 (1945) (concurring opinion). See also, e.g., Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 167 (1951) (concurring opinion of Justice Frankfurter).

34. See, e.g., Duncan v. Kahanamoku, 327 U.S. 304 (1946); Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). But cf. Koki Hirota v. MacArthur, 338 U.S. 197 (1948); Ex parte Quirin, 317 U.S. 1 (1942). The most serious war-related invasions of personal liberty involved primarily questions of substantive due process. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943).

security if the right of confrontation should be assured. And finally, we shall ask what the Constitution demands in terms of procedural due process.

A. Confrontation Denied.

In the postwar period during which confrontation has consistently been denied in a number of different situations, it is a curious fact that in other respects procedural due process has taken on new dimensions in making ever more scrupulous the demand of society that the game be played according to strict rules of fairness. Although some of these matters will be more fully developed subsequently, it is appropriate to note here the general movement of the law. In criminal proceedings, to identify only a few of the distinctly new rules, the indigent defendant is now assured that he will not be at a disadvantage in making an appeal by reason of poverty;35 the defendant is entitled to inspection of statements to FBI agents to impeach testimony of witnesses against him;36 and the identity of confidential informants may not be concealed where fairness to the accused requires disclosure.37 Similarly, in civil proceedings, the right of an organization not to be listed as subversive on the basis, even in insubstantial part, of perjured testimony has been applied to the testimony of confidential informants;38 an organization may not be listed as subversive without a fair hearing; and neither a person nor an organization can be required to assume the burden of proving nonsubversive qualities in order to secure the advantages of tax exemption.40 Other examples come to mind as well, but these suffice to make the point that protection of procedural due process is a cardinal tenet of contemporary constitutional law-with the single large exception that denial of confrontation has been tolerated in a variety of situations. The principal groups of individuals to whom confrontation has been held dispensable because of asserted requirements of national security are the following: government employees, employees of contractors with the government, maritime workers, international agencies employees, military personnel, aliens, conscientious objectors, and applicants for passports.*1

35. Griffin v. Illinois, 351 U.S. 12 (1956).

36. Jencks v. United States, 353 U.S. 657 (1957).

37. Roviaro v. United States, 353 U.S. 53 (1957).

38. Communist Party v. Subversive Activities Control Bd., 351 U.S. 115 (1956).

39. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1941). 40. Speiser v. Randall, 357 U.S. 513 (1958); First Unitarian Church v. Los Angeles, 357 U.S. 545 (1958).

41. Instances of the denial of confrontation for reasons not primarily concerned with national security are discussed in text at notes 105-15 infra.

Government Employment"2

The current programs involving scrutiny of the beliefs and associations of employees of the federal government date from President Truman's Executive Order 9835, of March 31, 1947.3 The story of that program and its successors has been fully told elsewhere" and will not be repeated here. Suffice it to note in the present context that from the beginning it was provided that

the investigative agency may refuse to disclose the names of confidential informants, provided it furnishes sufficient information about such informants on the basis of which the requesting department or agency can make an adequate evaluation of the information furnished by them, and provided it advises the requesting department or agency in writing that it is essential to the protection of the informants or to the investigation of other cases that the identity of the informants not be revealed."5

It should be noted that from the beginning the test of sufficiency of the information furnished was to be measured by whether "the requesting department or agency" could adequately evaluate the information. No concern was expressed as to whether the person against whom the informant testified would be provided with sufficient information that he could evaluate or answer the charges. With variations of detail, this became the pattern for all succeeding legislative and executive action. The standard which has controlled since 1953 was fixed in President Eisenhower's Executive Order 10450, of April 27, 1953. It provides that

reports and other investigative material and information shall be maintained in confidence, and no access shall be given thereto except, with the consent of the investigative agency concerned, to other departments and agencies conducting security programs under the authority granted by or in accordance with [Public Law 733, 64 Stat. 476 (1950), 5 U.S.C. § 22-1 (1952)] . . . .“ Needless to say, the screening of present and prospective government employees under this program was a staggering task, whether the standard was "reasonable grounds" for belief of disloyalty under Executive Order 9835, or a required finding that employment was "clearly consistent with the interests of the national security" under Executive Order 10450. It must have been equally obvious from the

42. See Association of the Bar of the City of N.Y., Report of the Special Committee on The Federal Loyalty-Security Program (1956) (hereinafter cited as New York Report); Bontecou, The Federal Loyalty-Security Program (1953); Brown, Loyalty and Security (1958).

43. 3 C.F.R. 627 (1943-48).

44. See note 42 supra.

45. Exec. Order No. 9835, Part IV (2), 3 C.F.R. 627, 630 (1943-48). 46. 3 C.F.R. 936 (1949-53).

47. Id. § 9 (c), at 939.

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