Dennis v. United States (339 U.S. 162)/Dissent Black
Mr. Justice BLACK, dissenting.

The petitioner, Dennis, was convicted of wilfully refusing to give testimony before the House Committee on Un-American Activities. The evidence against him was exceptionally strong. But no matter how strong that evidence, he had a constitutional right to have it passed on by an impartial jury.  No juror can meet the test of 'impartiality' if he has good reason to fear that a vote for acquittal would subject him to harassing investigations and perhaps cost him his job. On this ground the government employees called for jury duty were challenged for cause by petitioner. I am convinced that denial of this challenge deprived Dennis of an impartial jury.

Although each juror asserted that he or she could vote for acquittal without fear of adverse consequences, that cannot be accepted as conclusive evidence of impartiality. The test of bias sufficient to exclude a juror for cause is not what the particular juror believes he could do. Long ago Chief Justice Marshall ruled that a person 'may declare that he feels no prejudice in the case; and yet the law cautiously incapacitates him from serving on the jury because it suspects prejudice, because in general persons in a similar situation would feel prejudice.' 25 Fed.Cas. at page 50, No. 14,692g. 1 Burr's Trial 414. And this Court, while recognizing that persons of the 'highest honor and greatest self-sacrifice' would not be influenced by fear of financial losses, has said that 'every procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.' Tumey v. State of Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749, 50 A.L.R. 1243. 

We did not depart from the 'average man' test in United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78, or Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201. Those cases involved convictions for theft and dope-peddling. They did hold that proof of mere governmental employment was not enough, standing alone, automatically to impute disqualifying bias in every criminal proceeding brought by the Federal Government. But both opinions clearly indicated that 'particular issues or circumstances' might require exclusion of government employees in order to assure an impartial jury.  In complete harmony with the principle declared in the Burr and Tumey cases, our Wood opinion cautioned that a government employee could be disqualified if 'in view of the nature or circumstances of his employment, or of the relation of the particular governmental activity to the matters involved in the prosecution, or otherwise, he had actual bias * * *.'  299 U.S. at page 134, 57 S.Ct. at page 179, 81 L.Ed. 78. And the Frazier opinion emphasized that these factors would support disqualification of government employees for 'actual bias' without proof of 'prejudice in the subjective sense'. 335 U.S. at pages 510-511, n. 19, 69 S.Ct. at page 208.

Special circumstances of the type supporting disqualification under these decisions are, in my judgment, clearly shown by this record. The difficulty of securing an impartial jury at all is revealed by the number of potential jurors who felt that Dennis's position as Secretary of the Communist Party in this country would alone prevent their giving him a fair trial.  And the prevailing pattern of loyalty investigations and threatened purges makes it wholly unrealistic to expect government employees to enter the jury box with that quality of disinterestedness essential to complete impartiality.

The reasons urged for disqualifying government employees were first presented to the trial court in an affidavit supporting petitioner's motion for change of venue. The sworn allegations of that affidavit were never denied by the Government. In essence, the affidavit pointed out that all federal employees were under constant scrutiny by various agencies and congressional committees for possible sympathy with Communists or with affiliated organizations; that under Executive Order 9835, issued following vigorous demands by the congressional committee which had initiated the prosecution of Dennis, any of these employees would lose his job if a 'loyalty test' revealed 'reasonable grounds' for belief that he was disloyal; that members of the same committee had stated that anything less than imposition of maximum punishment on Dennis would expose the persons responsible therefor to charges of disloyal sympathy with Communism;  and that consequently a vote for acquittal would jeopardize the job of any government employee so voting.  Petitioner again cited the 'loyalty test' in challenging for cause all governmental employees called as jurors, although he did not bother to reargue the facts because his reasons were 'clear to us all.' Thus petitioner called the trial judge's attention to substantial facts in support of his challenges.

To say that employees of the United States could meet objective tests of complete impartiality in the trial of cases like this is to disregard human nature. Probably at no period of the nation's history has the 'loyalty' of government employees been subjected to such constant scrutiny and investigation by so many government agents and secret informers. And for the past few years press and radio have been crowded with charges by responsible officials and others that the writings, friendships, or associations of some government employee have branded him 'disloyal.' Government employees have good reason to fear that an honest vote to acquit a Communist or any one else accused of 'subversive' beliefs, however flimsy the prosecution's evidence, might be considered a 'disloyal' act which could easily cost them their job. That vote alone would in all probability evoke clamorous demands that he be publicly investigated or discharged outright; at the very least it would result in whisperings, suspicions, and a blemished reputation.

In the Wood case this Court regarded as 'far-fetched and chimerical' the suggestion that no government employee could have voted for acquittal of theft without endangering his job. I agree. But under the circumstances here it seems equally 'farfetched and chimerical' to suggest that government employees, however convinced of innocence, would feel completely free to acquit a defendant charged with disobeying a command of the Committee on Un-American Activities. My belief is that no defendant charged with such an offense, whatever his political affiliation, should be forced to accept a government employee as a juror. Nor should the Government want such an unfair advantage. Of course this advantage makes convictions easier. That is precisely what the Sixth Amendment was designed to prevent. It commands impartiality in the jury-box. Impartiality cannot survive in the shadow of threats to a juror's reputation and livelihood. 

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