
    GROBAN, In re.
    Supreme Court of the United States.
    No. 14.
    Decided February 25, 1957.
    
      James F. Graham, Zanesville, for appellants.
    Earl W. Allison, Jr., J. Ralston Werum, Columbus, for appellee.
   OPINION

By JUSTICE REED.

The question presented by this appeal is whether appellants had a constitutional right under the Due Process Clause of the Fourteenth Amendment to the assistance of their own counsel in giving testimony as witnesses at a proceeding conducted by the Ohio State Fire Marshal to investigate the causes of a fire.

After a fire occurred on the premises of a corporation owned and operated by appellants, the Fire Marshal started an investigation into the causes of the fire and subpoenaed appellants to appear as witnesses. The Fire Marshal refused to permit appellants’ counsel to be present at the proceeding, relying on §3737.13 R. C., which provides that the “investigation * * * may be private” and that he may “exclude from the place where [the] investigation, is. held, all persons, other than, tho.se required to be present * * Appellants declined to be sworn and testif without the immediate presence of their counsel who had accompaniei them to the hearing. Their refusal was treated as a violation of §3737.1; R. C., which provides that “no witness shall refuse to be sworn or refusi to testify * 1- V’ Sec. 3737.99(A) R. C., provides that “whoever violate; §3737.12 R. C., * * * may be summarily punished, by the officer concerned, by * * * commitment to the county jail until such person i; willing to comply with the order of such officer.” The Fire Marsha accordingly committed appellants to the county jail until such tim« as they should be willing to testify. Appellants’ application for a writ of habeas corpus was denied by the Ohio Court of Common Pleas, and this denial was affirmed on appeal by the Ohio Court of Appeals anc by the Ohio Supreme Court.

We postponed further consideration of the question of jurisdiction to the hearing on the merits. 351 U. S. 903, 76 S. Ct. 693, 100 L. Ed. 1440 The Ohio Supreme Court construed §3737.13 R. €., to authorize the Fire Marshal to exclude appellants’ counsel from the proceeding. Since appellants’ attack is on the constitutionality of that section, we have jurisdiction on appeal. 28 U. S. C. §1257(2d), 28 U. S. C. A. §1257(2).

We note at the outset that appellants explicitly disavow making any direct attack on the Fire Marshal’s power of summary punishment under §3737.99 (A) R. C. They challenge not the validity of the procedure by which they were committed to jail, but the constitutional sufficiency of the grounds on which they were so committed. Their sole assertion is that the Fire Marshal’s authority to exclude counsel under §3737.13 R. C., was unconstitutional because they had a right, under the Due Process Clause, to the assistance of their counsel in giving their testimony.

It is clear that a defendant in a state criminal trial has an unqualified right, under the Due Process Clause, to be heard through his own counsel. Chandler v. Fretag, 348 U. S. 3, 75 S. Ct. 1, 99 L. Ed. 4. Prosecution of an individual differs widely from administrative investigation of incidents damaging to the economy or dangerous to the public. The proceeding before the Fire Marshal was not a criminal trial, nor was it an administrative proceeding that would in any way adjudicate appellants’ responsibilities for the fire. It was a proceeding solely to elicit facts relating to the causes and circumstances of the fire. The Fire Marshal’s duty was to “determine whether the fire was the result of carelessness or design,” and to arrest any person against whom there was sufficient evidence on which to base a charge of arson.

The fact that appellants were under a legal duty to speak and that their testimony might provide a basis for criminal charges against them does not mean that they had a constitutional right to the assistance of their counsel. Appellants here are witnesses from whom information was sought as to the cause of the fire. A witness before a grand jury annot insist, as a matter of constitutional right, on being represented y his counsel, nor can a witness before other investigatory bodies. ?here is no more reason to allow the presence of counsel before a Fire iarshal trying in the public interest to determine the cause of a fire. Ibviously in these situations evidence obtained may possibly lay a witless wide open to criminal charges. When such charges are made in a :riminal proceeding, he then may demand the presence of his counsel ’or his defense. Until then his protection is the privilege against self-ncrimination. U. S. Const., Amend. V; Ohio Const., Art. I, §10. See Adamson v. People of State of California, 332 U. S. 46, 52, 67 S. Ct. 1672, 1675, 91 L. Ed. 1903. This is a privilege available in investigations as well as in prosecutions. See In re Groban, 164 Oh St 26, 28, 57 O. O. 70, 128 N. E. (2d), 106, 108, and 99 Oh Ap 512, 515, 59 O. O. 372, 135 N. E. (2d), 477, 480; McCarthy v. Arndstein, 266 U. S. 34, 40, 45 S. Ct. 16, 17, 69 L. Ed. 158; Adams v. State of Maryland, 347 U. S. 179, 74 S. Ct. 442, 98 L. Ed. 608. We have no doubt that the privilege is available in Ohio against prosecutions as well as convictions reasonably feared. Cf. Ullman v. United States, 350 U. S. 422, 431, 76 S. Ct. 497, 502, 100 L. Ed. 511. The mere fact that suspicion may be entertained of such a witness, as appellants' believed existed here, though without allegation of facts to support such a belief, does not bar the taking of testimony in a private investigatory proceeding.

It may be that the number of people present in a grand jury proceeding gives greater assurance that improper use will not be made of the witness’ presence. We think, however, that the presumption of fair and orderly conduct by the state officials without coercion or distortion exists until challenged by facts to the contrary. Possibility of improper exercise of opportunity to examine is not in our judgment a sound reason to set aside a state’s procedure for fire prevention. As in similar situations, abuses may be corrected as they arise, for example, by excluding from subsequent prosecutions evidence improperly obtained.

Ohio, like many other states, maintains a division of the state government directed by the Fire Marshal for the prevention of fires and reduction of fire losses. See. 3737.13 E. C., which has been in effect since 1900, represents a determination by the Ohio legislature that investigations conducted in private may be the most effective method of bringing to light facts concerning the origins of fires, and, in the long run, of reducing injuries and losses from fires caused by negligence or by design. We cannot say that this determination is unreasonable. The presences of advisors to witnesses might easily so far encumber an investigatory I proceeding as to make it unworkable or unwieldy. And with so weighty a public interest as fire prevention to protect, we cannot hold that the balance has been set in such a way as to be contrary to “fundamental principles of liberty and justice.” Hebert v. State of Louisiana, 272 U. S. 312, 316, 47 S. Ct., 103, 104, 71 L. Ed. 270. That is the test to measure the validity of a state statute under the Due Process Clause.

Appellants urge, however, that the Fire Marshal’s power to exclude counsel under §3737.13 R. C., must be considered in the light of his power of summary punishment under §3737.99 (A) R. C., and they would have us hold that, so considered, his power to exclude counsel was unconstitutional. We held in In re Oliver, 333 U. S. 257, 68 S. Ct. 499, 92 L. Ed. 682, that a witness before a one-man grand jury, a judge, could not constitutionally be punished summarily for contempt of the grand jury without being allowed to be represented by his counsel. We see no relation between the premise that appellants could not be punished without representation by counsel and the conclusion that they could not be questioned without such representation. Sec. 3737.13 R. C., may contain a constitutional flaw if it should be construed to authorize the exclusion of counsel while the Fire Marshal determines that a witness has violated §3737.12 R. C., and orders the witness committed. The sole assertion of a constitutional violation that appellants relied upon before the Ohio Supreme Court and the only one open on the record here — the authorization in §3737.13 R. C., of the exclusion of counsel while a witness testifies — is not well founded. We hold that appellants had no constitutional right to be assisted by their counsel in giving testimony at the investigatory proceeding conducted by the Fire Marshal, and that §3737.13 R. C., insofar as it authorizes the exclusion of counsel while a witness testifies, is not repugnant to the Due Process Clause of the Fourteenth Amendment.

Affirmed.

CONCURRING OPINION

By JUSTICE FRANKFURTER,

whom JUSTICE HARLAN joins.

To whatever extent history may confirm Lord Acton’s dictum that power tends to corrupt, such a doctrine of fear can hardly serve as a test, under the Due Process Clause of the Fourteenth Amendment, of a particular exercise of a state’s legislative power. And so, the constitutionality of a particular statute expressive of a state’s view of desirable policy for dealing with one of the rudimentary concerns of society — the prevention of fires and the ascertainment of their causes — and directed towards a particular situation, cannot be determined by deriving a troupe of hobgoblins from the assumption that such a particularized exercise of power would justify an unlimited, abusive exercise of power.

If the Ohio legislation were directed explicitly or by obvious design oward secret inquisition of those suspected of arson, we would have a vholly different situation from the one before us. This is not a statute iirected to the examination of suspects. It is a statute authorizing in-luiry by the chief guardian of a community against the hazards of fire nto the causes of fires. To be sure, it does not preclude the possibility ;hat a suspect might turn up among those to be questioned by the Fire Marshal. But the aim of the statute is the expeditious and expert as-:ertainment of the causes of fire. The Fire Marshal is not a prosecutor, though he may, like others, serve as a witness of the prosecution. In various proceedings, as for instance under some workmen’s compensation laws, the presence of lawyers is deemed not conducive to the economical and thorough ascertainment of the facts. The utmost devotion to one’s profession and the fullest recognition of the great role of lawyers in the evolution of a free society cannot lead one to erect as a constitutional principle that no administrative inquiry can be had in camera unless a lawyer be allowed to attend.

The assumption that as a normal matter such an inquiry carries with it deprivation of some rights of a citizen assumes inevitable misuse of authority. For good reasons, and certainly for constitutional purposes, the contrary assumption must be entertained. The potential danger most feared is that it will invade the privilege against self-incrimination in states where it is constitutionally recognized. But that privilege is amply safeguarded by the decision of the Supreme Court of Ohio in this case. We are not justified in invalidating this Ohio statute on the assumption that people called before the Fire Marshal would not be aware of their privilege not to respond to questions the answers to which may tend to incriminate. At a time when this privilege has attained the familiarity of the comic strips, the assumption of ignorance about the privilege by witnesses called before the Fire Marshal is too far-fetched an assumption on which to invalidate legislation.

What has been said disposes of the suggestion that, because this statute relating to a general administrative, nonprosecutorial inquiry into the causes of fire is sustained, it would follow that secret inquisitorial powers given to a District Attorney would also have to be sustained. The Due Process Clause does not disregard vital differences. If it be said that these are all differences of degree, the decisive answer is that recognition of differences of degree is inherent in due regard for due process. We are admonished from time to time not to adjudicate on the basis of fear of foreign totalitarianism. Equally so should we not be guided in the exercise of our reviewing power over legislation by fear of totalitarianism in our country.

For these reasons I join the opinion of the court.

DISSENTING OPINION

By JUSTICE BLACK,

with whom The CHIEF JUSTICE, JUSTICE DOUGLAS and JUSTICE BRENNAN join.

I believe that it violates the protections guaranteed every person by the Due Process Clause of the Fourteenth Amendment for a state to compel a person to appear alone before any law-enforcement officer and give testimony in secret against his will. Under the reasoning of the majority every state and federal law-enforcement officer in this country could constitutionally be given power to conduct such secret compulsory examinations. This would be a complete departure from our traditional methods of law enforcement and would go a long way toward placing “the liberty of every man in the hands of every petty officer.” By sanctioning the Ohio statutes involved here the majority disregards “this nation’s historic distrust of secret proceedings” and decides contrary to the general principle laid down by this court in one of its landmark decisions that an accused “* * * requires the guiding hand of counsel at every step in the proceedings against him.”

The Ohio statutes give the state Fire Marshal and his deputies broad power to investigate the cause of fires. These officers can summon any! person to appear before one or more of them to testify under oath. They can punish him summarily for contempt if he refuses to answer their | questions or if he disobeys any of their orders. They can exclude any I person they wish from the examination, including the witness’ counsel. I After the questioning the Marshal or his deputy can arrest the witness I if he believes that there is evidence sufficient to charge him with arson* or a similar crime. Any statements taken from the suspect during these secret sessions must be turned over to the Prosecuting Attorney for use in any subsequent prosecution. An “Arson Bureau” is established in the Fire Marshal’s office and it is provided with a staff charged with the duty of investigating fires to determine if a crime has been committed. The Fire Marshal and his deputy in charge of the “Arson Bureau” are expressly made “* * r responsible * * * for the prosecution of persons believed to be guilty of arson or a similar crime.” The statutory provisions show that the Fire Marshal and his deputies are given the ordinary duties of policemen with respect to “arson and similar crimes.”

After appellant’s place of business at Dresden, Ohio, burned down, a deputy fire marshal summoned appellants to appear before him with their business records to answer questions about the fire. According to their unchallenged affidavit, the Fire Marshal believed that they had started the fire. Appellants appeared before the deputy with their lawyer, stating that they were willing to testify fully but only if they could have their counsel present during the interrogation. The deputy nformed them that the interrogation would be.held in private and reused to admit their lawyer. Under these conditions they refused to estify. The deputy proceeded to hold them in contempt and ordered hem imprisoned until they were willing to testify before him in secret. Appellants’ counsel was not present at the time they refused to testify ror when they were adjudged in contempt and ordered imprisoned.

Appellants instituted this action for a writ of habeas corpus in a state court of Ohio contending that their imprisonment would be cern-ir ary to the Fourteenth Amendment. The Ohio Supreme Court rejected ;his contention and affirmed the judgments of lower state courts refusing bo issue the writ. This court upholds the decision below, but even on the narrow grounds upon which it chooses to decide the case I think that its holding is erroneous and constitutes a very dangerous precedent. E believe that the judgments below should be reversed because it is contrary to due process of law to imprison appellants for refusing to testify before the deputy Fire Marshal in secret.

A secret examination such as the deputy proposed to conduct is fraught with dangers of the highest degree to a witness who may be prosecuted on charges related to or resulting from his interrogation. Under the law of Ohio it seems clear that any statement allegedly secured from the witness may be used as evidence against him at a preliminary examination to justify his detention, before a grand jury to secure his indictment, and at the formal trial to obtain his conviction. The witness has no effective way to challenge his interrogator’s testimony as to what was said and done at the secret inquisition. The officer’s version frequently may reflect an inaccurate understanding of an accused’s statements or, on occasion, may be deliberately distorted or falsified. While the accused may protest against these misrepresentations, his protestations will normally be in vain. This is particularly true when the officer is accompanied by several of his assistants and they all vouch for his story. But when the public, or even the suspect’s counsel, is present the hazards to the suspect from the officer’s misunderstanding o twisting of his statements or conduct are greatly reduced.

The presence of legal counsel or any person who is not an executiv officer bent on enforcing the law provides still another protection to th witness. Behind closed doors he can be coerced, tricked or confused b; officers into making statements which may be untrue or may hide thi truth by creating misleading impressions. While the witness is in thfl custody of the interrogators, as a practical matter, he is subject to theiii uncontrolled will. Here it should be pointed out that the Ohio law place* no restrictions on where the interrogations can be held or their dura-j tion. Exemplifying the abuses which may occur in secret proceedings! this court has repeatedly had before it cases where confessions have beer obtained from suspects by coercive interrogation in secret. While the ircumstances in each of these cases have varied, in all of them, as well s in many others, the common element has been the suspect’s inter-ogation by officers while he was held incommunicado without the resence of his counsel, his friends or relatives, or the public. As was aid in a concurring opinion in Haley v. State of Ohio, 332 U. S. 596, at page 605, 68 S. Ct. 302, at page 306, 92 L. Ed. 224: “An impressive series f cases in this and other courts admonishes of the temptations to abuse f police endeavors to secure confessions from suspects, through pro-racted questioning carried on in secrecy, with the inevitable dis-uietude and fears police interrogations naturally engender in indi-iduals questioned while held incommunicado, without the aid of coun-el and unprotected by the safeguards of a judicial inquiry.” Nothing rould be better calculated to prevent misuse of official power in dealing vith a witness or suspect than the scrutiny of his lawyer or friends or wen of disinterested bystanders.

A witness charged with committing contempt during the secret in-errogation faces the gravest handicaps in defending against this charge. The interrogating officers may assert that he engaged in certain con-umacious behavior before them and seek to imprison him. Even when ;he charges are tried by someone other than his interrogators, the iccused’s efforts to show that the actual events were not as pictured by the interrogating officers would normally be futile if he could call on n one to corroborate his testimony. And when a witness is deprived of th advice of counsel he may be completely unaware that his conduct ha crossed the obscure boundary and become contemptuous. Moreove: executive officers will be somewhat more chary in exercising the danger ous contempt power if their actions are subject to external scrutiny.

I also firmly believe that the Due Process Clause requires that a per son interrogated be allowed to use legal counsel whenever he is com pelled to give testimony to law-enforcement officers which may be instru mental in his prosecution and conviction for a criminal offense. Thi court has repeatedly held that an accused in a state criminal prosecutio: has an unqualified right to make use of counsel at every stage of the pro ceedings against him. The broader implications of these decision seem to me to support appellants’ right to use their counsel when ques tioned by the deputy fire marshal. It may be that the type of interroga tion which the Fire Marshal and his deputies are authorized to condue would not technically fit into the traditional category of formal crimina proceedings, but the substantive effect of such interrogation on ai eventual criminal prosecution of the person questioned can be so grea that he should not be compelled to give testimony when he is deprive; of the advice of his counsel. It is quite possible that the conviction o a person charged with arson or a similar crime may be attributabh largely to his interrogation by the Fire Marshal. The right to use coun sel at the formal trial is a very hollow thing when, for all practica purposes, the conviction is already assured by pretrial examination.’

Looking at the substance of things, the Fire Marshal’s secret inter rogation contains many of the dangers to an accused that would b present if he were partially tried in secret without the assistance o counsel for “arson or a similar crime.” Suppose that at the commencement of a criminal trial, the judge, acting under statutory authorization, expelled everyone from the courtroom but the prosecuting attorney and his assistants and allowed them to question the accused “privately.” After such interrogation the doors were thrown open, the jury recalled, and the jurors given a resume or transcript of the accused’s purported testimony. And then the defendant’s lawyer, who had been excluded from the secret examination, was allowed to make such defense as he could. Surely no one would contend that such a proceeding was due process of law. Yet the techniques as well as the end effects of the Fire Marshal’s seeret interrogation are substantially the same.

It is said that a witness can protect himself against some of the many abuses possible in a secret interrogation by asserting the privilege against self-incrimination. But this proposition collapses under anything more than the most superficial consideration. The average witness has little if any idea when or how to raise any of his constitutional privileges. There is no requirement in the Ohio statutes that the fire-prevention officers must inform the witness that he is privileged not to incriminate himself. And in view of the, intricate possibilities of waiver which surround the privilege he may easily unwittingly waive it. If the witness is coerced or misled by his interrogators he may not dare to raise the privilege. Undoubtedly he will be made aware that hanging over his head at all times is the officer’s power to punish him for contempt — a power whose limitations the witness will not understand. Furthermore, the Fire Marshal or his deputies would seldom be competent to decide if the privilege has been properly claimed or, even if they wish, to instruct the witness how to make correct use of it.

To support its decision that Ohio can punish a witness for refusing to submit to the Fire Marshal’s seeret interrogation, the majority places heavy reliance on the practice of examining witnesses before a grand jury in secret without the presence of the witness’ counsel. But any surface support the grand jury practice may lend disappears upon analysis of that institution. The traditional English and American grand jury is composed of 12 to 23 members selected from the general citizenry of the locality where the alleged crime was committed. They bring into the grand jury room the experience, knowledge and viewpoint o all sections of the community. They have no axes to grind and are no charged personally with the administration of the law. No one of then is a prosecuting attorney or law-enforcement officer ferreting out crime It would be very difficult for officers of the state seriously to abuse o: deceive a witness in the presence of the grand jury. Similarly thi presence of the jurors offers a substantial safeguard against the officer’: misrepresentation, unintentional or otherwise, of the witness’ statements and conduct before the grand jury. The witness can call on th( grand jurors if need be for their normally unbiased testimony as to wha' occurred before them.

The majority also relies on a supposed proposition that there is nc right to use counsel in an administrative investigation. Here it i: relevant and significant to point out that in 1946 Congress specificallj required in the Administrative Procedure Act that:

“Any person compelled to appear in person before any agency oi representative thereof shall be accorded the right to be accompanied; represented, and advised by counsel or, if permitted by the agency, by other qualified representative.”

In reporting the bill which was substantially enacted as the Ad ministrative Procedure Act the Senate Judiciary Committee unanimously declared:

“By enacting this bill, the Congress — expressing the will of the people — will be laying down for the guidance of all branches of the Government and all private interests in the country a policy respecting the minimum requirements of fair administrative procedure.” And the House Judiciary Committee in reporting the House version of the Administrative Procedure Act stated:
“The bill is an outline of minimum essential rights and procedures.” Heretofore this court has never held and I would never agree that an administrative agency conducting an investigation could validly compel a witness to appear before it and testify in secret without the assistance of his counsel.

In any event, the investigations authorized by the Ohio statutes are far more than mere administrative inquiries for securing information useful generally in the prevention of fires. Rather, these statutes command action with a view toward the apprehension and prosecution of persons believed guilty of certain crimes. The Marshal or his deputies may compel a person suspected of arson or a similar offense — as appellants apparently were — to appear and give testimony under oath. And is previously indicated any statement elicited from such person may be ised as evidence against him. Once testimony has been taken from a suspect the duties of the Marshal and his deputies are not at an end. They must arrest the witness if they believe that the evidence is suf-icient to charge him with certain crimes. All testimony taken from him and all other evidence must be turned over to the prosecuting attorney. The Fire Marshal and his deputy in charge of the “Arson Bureau” are specifically made “* * * responsible * * * for the prosecution of persons aelieved to be guilty of arson or a similar crime.” The foregoing clearly lemonstrates that the Fire Marshal’s interrogation is, and apparently vas intended to be, an important and integral part in the prosecution of ;he persons for arson or a similar crime. The rights of a person who is examined in connection with such crimes should not be destroyed nerely because the inquiry is given the euphonious label “administra-iive.”

Finally it is argued that the Fire Marshal and his deputies should have the right to exclude counsel and such other persons as they choose so that their investigatory proceedings” will not be “unduly encumbered.” From all that appears the primary manner in which the presence of counsel or the public would “encumber” the interrogation would be by protecting the legitimate rights of the witness. It is undeniable that law-enforcement officers could rack up more convictions if they were not “hampered” by the defendant’s counsel or the presence of others who might report to the public the manner in which people were being convicted. But the procedural safeguards deemed essential for due process have been imposed deliberately with full knowledge that they will occasionally impede the conviction of persons suspected of crime.

The majority states that “with so weighty a public interest as fire prevention to protect,” they cannot hold that it violates the Due Process Clause to compel a witness to testify at a secret proceeding. But is th public’s interest in fire prevention so weighty that it requires denyin the person interrogated the basic procedural safeguards essential t justice? Suppose that Ohio authorized the Chief of State Police and hi deputies to inquire into the causes and circumstances of crime generall and gave them power to compel witnesses or persons suspected of crim to appear and give testimony in secret. Since the public’s interest i: crime prevention is at least as great as its interest in fire prevention, th reasoning used in the majority’s opinion would lead to the approval o such means of “law enforcement.” In fact, the opinion could readily b applied to sanction a grant of similar power to every state trooper, police man, sheriff, marshal, constable, FBI agent, prosecuting attorney, im migration official, narcotics agent, health officer, sanitation inspectoi building inspector, tax collector, customs officers and to all the othe countless state and federal officials who have authority to investigat violations of the law. I believe that the majority opinion offers a com pletely novel and extremely dangerous precedent — one that could b used to destroy a society of liberty under law and to establish in it place authoritarian government.

No one disputes that Ohio has a great interest in the enforcemen of its fire laws. But there is nothing which suggests that it is essentia to adequate enforcement of these laws to give the Fire Marshal and hi deputies the extreme powers of interrogation which they proposed t exercise here. This method of law enforcement has heretofore beei deemed inconsistent with our system of justice. As Justice Frankfurte said in announcing the court’s opinion in Watts v. State of Indiana, 33 U. S. 49, at page 54, 69 S. Ct. 1347, at page 1350, 93 L. Ed. 1801:

“Ours is the accusatorial as opposed to the inquisitorial systerr Such has been the characteristic of Anglo-American criminal justice sine it freed itself from practices borrowed by the Star Chamber from th Continent whereby an accused was interrogated in secret for hours o: end. * * * Under our system society carries the burden of proving it charge against the accused not out of his own mouth. It must establisl 3 case, not by interrogation of the accused even under judicial safe-lards, but by evidence independently secured through skillful investi-ition.”

Secret inquisitions are dangerous things justly feared by free men rerywhere. They are the breeding place for arbitrary misuse of Scial power. They are often the beginning of tyranny as well as indispensable instruments for its survival. Modern as well as ancienj history bears witness that both innocent and guilty have been seized bl officers of the state and whisked away for secret interrogation or worsl until the groundwork has been securely laid for their inevitable convic| tion. While the labels applied to this practice have frequently changec the central idea wherever and whenever carried out remains unchanging —extraction of “statements” by one means or another from an individual by officers of the state while he is held incommunicado. I reiterate mj belief that it violates the Due Process Clause to compel a person t<j answer questions at a secret interrogation where he is denied legal asl sistance and where he is subject to the uncontrolled and invisiblJ exercise of power by government officials. Such procedures are a gravq threat to the liberties of a free people. 
      
      . Page’s Ohio. Rev. Code, §3737.13.
     
      
      . Appellants were released on bond and have never in fact been incarcerated.
     
      
      . In re Groban, 164 Oh St 26, 57 O. O. 70, 128 N. E. (2d), 106.
     
      
      . Page’s Ohio Rev. Code §§3737.08, 3737.10.
     
      
      . In re Black, 2 Cir., 47 F. (2d), 542; accord, United States v. Blanton, D. C., 77 F. Supp. 812; see United States v. Scully, 2 Cir, 225 F. (2d) 113, 116.
     
      
      . Bowles v. Baer, 7 Cir., 142 F. (2d), 787; United States v. Levine, D. C., 127 F. Supp. 651. Note, Rights of Witnesses in Administrative Investigations, 54 Harv. L. Rev. 1214, 1216-1217.
     
      
      . Cf. Ullman v. United States, 350 U. S. 422, 76 S. Ct. 497, 100 L. Ed. 511; Hoffman v United States, 341 U. S, 479, 486, 71 S. Ct., 814, 95 L. Ed. 1118; Smith v. United States, 337 U. S. 137, 150, 69 S. Ct. 1000, 1007, 93 L. Ed. 1264; Hale v. Henkel, 201 U. S. 43, 66-67, 28 S. Ct. 370, 375-376, 50 L. Ed. 652.
     
      
      . See National Fire Protection Association Handbook of Fire Protection (10th ed. 1948) 41-45; Annual Report of the Division of (Ohio) State Fire Marshal for 1955.
     
      
      . Ohio Laws 1900, Senate Bill No. 51.
     
      
      . This was recognized in Ex parte Sullivan, D. C., 107 F. Supp. 514 517. There two persons suspected of crime had been examined by law enforcement officers in secret without the presence of counsel and had bee: tricked into making statements which were instrumental in their conviction At pages 517-518, the district judge observed:
      In view of (Powell v. State of Alabama, 287 U. S., 45, 53 S. Ct. 55, 77 L Ed. 158), to mention but one of many cases, unquestionably Petitioners wer entitled to have effective counsel AT THE TRIAL. The question here i how they ever could have had effective counsel at the trial, no matter hov skilled, in view of what went on before trial. They were denied effectiv counsel at the trial itself because of what went on before trial while th' defendants were without counsel, and absolutely under the control of th prosecution. * * * One can imagine a cynical prosecutor saying: ‘Let then have the most illustrious counsel, now. They can’t escape the noose. There is nothing that counsel can do for them at the trial.’” (Emphasis not sup plied.)
      Also see Jackson, J., concurring in Watts v. State of Indiana, 338 U. S. 49, 57, 69 S. Ct. 1347, 1351, 93 L. Ed. 1801.
     
      
      . James Otis used this phrase in denouncing the Writs of Assistance and General Warrants in his famous argument in Paxton’s Case. 2 The Works of John Adams (Boston 1850) App. 524.
     
      
      . In re Oliver, 333 U. S. 257, 273, 68 S. Ct. 499, 507, 92 L. Ed. 682.
     
      
      . Powell v. State of Alabama, 287 U. S. 45, 69, 53 S. Ct. 55, 64, 77 L. Ed. 158.
     
      
      . Page’s Ohio Rev. Code §§3537.11, 3537.12.
     
      
      . Id., §§3737.12, 3737.99A.
     
      
      . Id., §3737.13.
     
      
      . Id. §3737.10.
     
      
      . Id., §3737.10.
     
      
      . Id., §3737.02.
     
      
      . I would also reverse the decision below because appellants were found guilty of contempt and sentenced to jail in a proceeding where they were denied the benefit of counsel. This Court has expressly held that a person charged with contempt has a constitutional right to be heard through counsel of his own choosing at a trial on the contempt charge. In re Oliver, 333 U. S. 257, 68 S. Ct. 499, 92 L. Ed. 682. While the majority refuses to act on the denial here by claiming that appellants failed to challenge it in the Ohio Supreme Court or in their appeal to this Court, the record convinces me that the matter has been properly raised for our consideration. When a person is to be imprisoned as the result of a proceeding in, which he was denied his constitutional rights, we should not be anxious to conclude that he failed to raise the constitutional questions in the correct procedural form. Cf. Aetna Ins. Co. v. Kennedy, 301 U. S. 389, 393, 57 S. Ct. 809, 811, 81 L. Ed. 1177; Hodges v. Easton, 106 U. S. 408, 412, 1 S. Ct. 307, 310, 27 L. Ed. 169.
     
      
      . See Generally 15 O. Jur. 2d, Criminal Law §388.
     
      
      . In this respect it is more important to note that under the Ohio statutes the Fire Marshal or his deputies may permit such persons as they wish to attend the interrogation.
     
      
      . This has been recognized from ancient times. As it is said in Matthews 18:15-16:
      “Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone; if he shall hear thee, thou has gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established.”
      Blackstone many centuries lated noted that
      “(The) open examination of witnesses VIVA VOCE, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk. * * * There an artful or careless scribe may make a witness speak what he never meant. * * *” 3 Blackstone Commentaries 373.
      And Bentham subsequently pointed out:
      “In case of registration and recordation of the evidence, publicity serves as a security for the correctness in every respect (completeness included) of the work of the registrator.
      “In case of material incorrectness, whether by design or inadvertence,— so many auditors present * * * any or each of whom may eventually be capable of indicating, in the character of a witness, the existence of the error, and the tenor (or at least the purport) of the alteration requisite for the correction of it.” 1 Bentham, Rationale of Judicial Evidence, 523 (1827).
     
      
      . See, e. g., Fikes v. State of Alabama, 352 U. S. 191, 77 S. Ct. 281, 1 L. Ed. (2d) 246; Leyra v. Denno, 347 U. S. 556, 74 S. Ct. 716. 98 L. Ed. 948; Watts v. State of Indiana, 338 U. S. 49, 69 S. Ct. 1347, 93 L. Ed. 1801; Turner v. Commonwealth of Pennsylvania, 338 U. S. 62, 69 S. Ct. 1352, 93 L. Ed. 1810; Harris v. State of South Carolina, 338 U. S. 68, 69 S. Ct. 1354, 93 L. Ed. 1815; Haley v. State of Ohio, 332 U. S. 596, 68 S. Ct. 302, 92 L. Ed. 224; Malinski v. People of State of New York, 324 U. S. 401, 65 S. Ct. 781, 89 L. Ed. 1029; Ashcraft v. State of Tennessee, 322 U. S. 143, 64 S. Ct. 921, 88 L. Ed. 1192; Ward v. State of Texas, 316 U. S. 547, 62 S. Ct. 1139, 86 L. Ed. 1663; White v. State of Texas, 310 U. S. 530, 60 S. Ct. 1032, 84 L. Ed. 1342; Chambers v. State of Florida, 309 U. S. 227, 60 S. Ct. 472, 84 L. Ed. 716. Por a discussion of the dangers and abuses arising from the secret interrogation of suspects by police see the report of the American Bar Association’s Committee on Lawless Enforcement of the Law, 1 Ajper. Joiirn-of Police Science, 575,
     
      
      . In United States v. Minker, 350 U. S. 179, at page 188, 76 S. Ct. 281, at page 287, 100 L. Ed. 185, the court pointed out with regard to proposed examinations by immigration officers that:
      “It does not bespeak depreciation of official zeal, nor does it bring into juestion disinterestedness, to conclude that compulsory EX PARTE adminis-;rative examinations, untrammelled by the safeguards of a public adversary judicial proceeding, afford too ready opportunities for unhappy consequences ;o prospective defendants in denaturalization suits.”
     
      
      . It seems wholly improper to “wait and see” and in each case whether a witness has been coerced or tricked into giving involuntary state-nents at the secret interrogation and then to set aside convictions which may be based on such statements. This “abuse-by-abuse” approach fails to jive the person interrogated sufficient protection. Usually he has no substantial chance of showing that the one or more interrogators used improper means to elicit involuntary statements from him. Only in the most extreme cases will this Court, or any other, be able to find that statements were made involuntarily in the face of the interrogating officers’ testimony that they were spontaneous and freely given. Apparently in Ohio, as in most jurisdictions, the suspect faces the additional obstacle that his alleged statements are presumed to be voluntary and he has the burden of proving that they were not. See 15 O. Jur. 2d, Criminal Law, §387. In the few cases where a person interrogated could prove that his statements were made involuntarily he will still be subjected to considerable expense, inconvenience and unfavorable publicity. More important, he will already have suffered mistreatment at the hands of his interrogators.
     
      
      . Here, of course, the interrogators were authorized to try thp charges of contempt which they preferred.
     
      
      . See, e. g., Powell v. State of Alabama, 287 U. S. 45, 53 S. Ct. 55, 7 L. Ed. 158; Chandler v. Fretag, 348 U. S. 3, 75 S. Ct. 1, 99 L. Ed. 4.
     
      
      . See, e. g., Rogers v. United States, 340 U. S. 367, 71 S. Ct. 438, 95 L. Ed. 344.
     
      
      . All of the cases cited by the majority as authority for the practice before grand juries apparently involved a traditional grand jury. It has been suggested that a state can constitutionally provide for grand juries composed of less than 12 persons. See In re Murchison, 349 U. S. 133, 139, 140, 75 S. Ct. 623, 626, 627, 99 L. Ed. 942 (dissenting opinion); In re Oliver, 333 U. S. 257, 283, 283-284, 68 S. Ct. 499, 512, 512-513, 92 L. Ed. 682 (dissenting opinion). Even if this suggestion is correct it certainly does not follow that a state can designate one or more of its law-enforcement officers as a grand jury and constitutionally give them power to compel witnesses to appear and give testimony in secret without the presence of counsel. This point was expressly not considered in In re Oliver, supra, 333 U. S. at page 266, 68 S. Ct. at page 503. Such power in the hands of law-enforcement officers is equally obnoxious to due process whether they are styled as a grand jury, as fire-prevention officers or simply as policemen.
     
      
      . The only authorities offered by the majority as support for this proposition are three lower federal court decisions.
     
      
      . 5 U. S. C. §1005(a), 5 U. S. C. A. §1005(a).
     
      
      . S. Rep. No. 752, 79th Cong., 1st Sess. 31.
     
      
      . H. R. Rep. No. 1980, 79th Cong., 2d Sess. 16.
     
      
      . It seems highly unrealistic to equate this interrogation with a proceeding involving a claim for workmen’s compensation.
     
      
      . Nor should they be defeated because the Fire Marshal and his deputies are given other duties besides investigating fires to determine if any criminality is involved. For obvious reasons these other responsibilities do not make the interrogation proposed here any less objectionable.
     
      
      . Perhaps, if a real need could be shown, counsel could be restricted to advising his client and prohibited from making statements or asking questions. And there are other alternatives, much less drastic and prejudicial to the witness than the complete exclusion of his counsel, which might provide satisfactory protection for the witness without unduly impairing the efficiency of the examination.
     
      
      . As Bentham said of criminal proceedings:
      “Without publicity, all other checks are insufficient; in comparison of publicity all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks, as cloaks in reality, as cheeks only in appearance.” 1 Bentham, Rationale of Judicial Evidence (1827), 524.
     
      
      . See United States v. Minker, 350 U. S. 179, 76 S. Ct. 281, 100 L. Ed. 185.
     
      
      . The court’s opinion does not deny that secret inquisitorial power could be given such law enforcement officers. A concurring opinion sug gests that the grant of such broad power might be unconstitutional so fa as a district attorney is concerned. However if policemen in general ca: constitutionally subject persons to secret compulsory interrogation, how ca it conceivably be said that a district attorney could not? I can see n constitutional means of distinguishing this Ohio fire policeman from an other policeman or law enforcement officer. Any attempted constitutions distinction between these various law enforcement officers would be purel artificial. The constitutionality of the Ohio law authorizing secret inter rogation by fire marshals acting as policemen in arson cases should not fc rested on a conjecture that such an artificial distinction will be drawn b this court at some future day.
     
      
      . A survey of British law reveals nothing which is equivalent to the rpe of examination that the Ohio Fire Marshal is allowed to conduct, fficial inquiries into the cause of fires are generally made by the police. (W)hen the police are inquiring into a case, they have no power to corn-el anyone to give them information; a witness may be compelled to attend
      COURT and there give evidence, but before proceedings are actually rought he can refuse to say a word.” Jackson, The Machinery of Justice i England, 137. And in 1929 the Report of the Royal Commission on Police ’owers and Procedure at p. 118 recommended that “A rigid instruction hould be issued to the Police that no questioning of a prisoner, or a ‘person a custody,’ about any crime or offense with which he is, or may be, charged, hould be permitted.” It is doubtful if any statements obtained by the olice by secret interrogation of a suspect would be admitted in evidence in . subsequent trial. See Rex v. Grayson, 16 Crim. App. R. 7 (1921); 43 Harv. L. Rev. 618; 43 Ky. L. Rev. 403.
      In France official inquiries into fires are carried out as part of the ■eneral system of investigating crimes. The preliminary investigation is nder the control of the public prosecutor and is conducted by the police, ’hey have no authority to examine unwilling witnesses. The interrogation f such witnesses and of suspects is the function of the Juge ¿’Instruction, vho is a judge with legal training. Prior to 1897 he had broad power to xamine a witness under oath in secret without counsel. See Ploscowe, levelopment of Inquisitorial and Accusatorial Elements in French Procedure, ¡3 J. Crim. L. & Crimmol, 372. In 1882 Stephen commented on these secret iroceedings as follows:
      “To a person accustomed to the English system and to English ways of hinking and feeling * * * the French system would be utterly intolerable in üngland. The substitution of a secret (interrogation) for our open investiga-ron before the committing magistrate would appear to us to poison justice it its source.” 1 Stephen, History of the Criminal Law of England, 565 [1882).
      In response to widespread demands French law was changed in 1897 o grant a witness appearing before the Juge ¿’Instruction the right to ¡ounsel. M. Constans, one of the sponsors of the law in the French Senate, said: “The JUGE DTNSTRUCTION is like other functionaries. He must je controlled. * * * The presence of the lawyer will of itself * * * prevent lim from doing anything but his duty.” Quoted in Ploscowe, supra, at 181. See also Esmein, History of Continental Criminal Procedure (1913); ECeedy, The Preliminary Investigation of Crime in France, 88 U. Pa. L. Etev. 692.
     
      
      . A leading Italian jurist recently said:
      “The right to counsel, without which the right to defend oneself is of no practical meaning, does not exist during the first phase of the criminal process in those systems in which the pre-trial phase is carried out i: secret without the presence of defense counsel. This is the phase in whic the accused, alone and undefended before the examining magistrate, may b unable to find in his own innocence sufficient strength to resist the effects o: prolonged questioning, and in order to put an end to his ordeal may be reduced to signing a confession to a crime he has not committed. Unfortunately, Italian criminal procedure retains this said inheritance iron an era of tyranny, which is unreconcilable with respect for the human personality. * * *
      “In criminal procedure as we see it applied, the accused is still at inert object at the mercy of the inquisitor’s violence * * * Held incommunicado during the period of questioning, the accused is alone with his examiners, without aid of counsel; torture, although formally abolished, has returned with new guises more scientific but nonetheless cruel; the thirc degree, endless hours of incessant questioning, truth serum.” Calamandrei Procedure and Democracy (Adams transí. 1956) 93-94, 102-103.
     