Opinion of the Court. 339 U.S. access to the books, her answer again was an evasion. She said: "I don't think it is pertinent to say what I should do a week from now." The difficulty with that position is that it is not for her nor any other member of the board to say that she would make up her mind next week. The return day of the subpoena had arrived. No one so much as hinted that there had been no time to act. The members had gathered in an attorney's office on April 2, when they received their statements. There was evidence that some members had gathered informally elsewhere to discuss the question of compliance. In fact all were present in the anteroom of the Committee's chamber on the morning of April 4. If there had been the slightest bent toward compliance, the opportunities were there. When respondent appeared before the Committee, she was asked in effect, as of that time, whether she was a party to the joint refusal to produce the records: "Would you now, right here now, give your consent to this committee to [see the books and records]?" As one of the members of the Committee stated to respondent: "That is the main thing, the whole case." Her answer was no answer. It may be argued, however, that respondent may have adopted the position of the other members of the board only after she had tried in good faith to bring about compliance with the subpoena. Or perhaps she had been ill or necessarily out of town immediately prior to April 4. Granting that these or other excuses for nonaction may exist, must the Government negative each, or was the burden on respondent to advance them as defensive matter? We think that the circumstances of this case fairly bring into play the familiar doctrine in criminal cases that "it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circum 349 Opinion of the Court. stances and which if untrue could be readily disproved by the production of documents or other evidence probably within the defendant's possession or control." Rossi v. United States, 289 U. S. 89, 91-92 (1933), and authorities cited. The considerations that govern this question have been well stated by Mr. Justice Cardozo in discussing a similar question-the constitutionality of a statute which shifted the burden of proof in a criminal prosecution to the defendant. He said: "The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant: The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance . . . , or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. Greenleaf, Evidence, Vol. 1, § 79.* The *The Court's footnote reads: "Instances of the application of this principle can be cited in profusion. The cases that follow are typical examples: King v. Turner, 5 Mau. & Sel. 206, where a defendant having game in his possession in violation of a statute whereby possession was generally a crime, was held to have the burden of Opinion of the Court. 339 U.S. list is not exhaustive. Other instances may have arisen or may develop in the future where the balance of convenience can be redressed without oppression to the defendant through the same procedural expedient. The decisive considerations are too variable, too much distinctions of degree, too dependent in last analysis upon a common sense estimate of fairness or of facilities of proof, to be crowded into a formula. One can do no more than adumbrate them; sharper definition must await the specific case as it arises." Morrison v. California, 291 U. S. 82, 88-91 (1934).9 In this situation, manifestly, the prosecution is under a serious practical handicap if it must prove the negative proposition that respondent did not or had no good reason for failing to try to comply with the subpoena insofar as she was able. The possibilities of time and proving his special qualifications (cf. Yee Hem v. United States, [268 U. S. 178]; also Spieres v. Parker, 1 T. R. 144, per Lord Mansfield); Fleming v. People, 27 N. Y. 329, a prosecution for bigamy, where on proof that the defendant had contracted a second marriage during the lifetime of his first wife, the burden was laid upon him to prove exceptional circumstances that would have made the marriage lawful; and finally such cases as Potter v. Deyo, 19 Wend. 361, 363, and United States v. Turner, 266 Fed. 248 (typical of a host of others) where a defendant has been subjected to the burden of producing a license or a permit for a business or profession that would otherwise be illegal. Cf. United States v. Hayward, 26 Fed. Cas. 240; Board of Comm'rs v. Merchant, 103 N. Y. 143; 8 N. E. 484." "See also Williams v. United States, 78 U. S. App. D. C. 147, 138 F. 2d 81 (1943). In Tot v. United States, 319 U. S. 463 (1943), this Court refused to uphold a federal statute creating a presumption that firearms found in the possession of one who has previously been convicted of a crime of violence were received by him in interstate or foreign commerce after July 30, 1938,. on the ground that the presumption is "inconsistent with any argument drawn from experience." Id. at 468. 349 Opinion of the Court. circumstance are of such wide range as to defy inclusive rebuttal. On the other hand, the burden of the affirmative was not an oppressive one for respondent to undertake; the relevant facts are peculiarly within her knowledge. She was called upon merely to introduce evidence as to what steps she took after receiving the subpoena, or, if she took no action, any evidence tending to excuse her omission. Respondent does not lose the presumption of innocence that surrounds the defendant in a criminal prosecution. That presumption continues to operate until overcome by proof of guilt beyond a reasonable doubt and is not to be confused with burden of proof, which is a rule affecting merely the time and manner of proof. See 1 Wharton, Criminal Evidence (11th ed.) §§ 199-204.10 10 This conclusion is buttressed by the fact that such a burden ordinarily is cast upon members of the governing boards of corporations and associations which have not complied with court orders, when they are brought into court on contempt charges. In Wilson v. United States, 221 U. S. 361 (1911), where Wilson, the president of the corporation, had custody of the books and had removed them to his home, the corporation and five of its directors were served with subpoenas to produce. The directors appeared in court and were not held in contempt although they did not produce the books because, as this Court noted in its opinion: "On behalf of the directors before the court it was stated that they had made efforts to obtain the books for production before the grand jury, but that Wilson had declined to surrender them. They presented the minutes of a meeting of the board of directors held on that day at which these directors [i. e. those who had been served with subpoenas], constituting a majority of the board, had passed a resolution demanding of Wilson the possession of the letter press copy books called for by the subpoena 'for the production of the same before the Federal Grand Jury." Id. at 371. Again, in contrasting Wilson's actions with those of the directors, the Court stated: "The appellant did not attempt to assert any right on [the corporation's] part; his conduct was in antagonism to the corporation, so far as its attitude is shown. A majority of the directors, not including the appellant, Opinion of the Court. 339 U.S. Even though we assume, therefore, contrary to the reasonable inferences to be drawn from respondent's statements before the Committee, that she may have made some effort to bring about compliance with the subpoena, or had some excuse for failing to do so, we think that under the circumstances here presented the burden was upon her to present evidence to sustain such a defense. And, in the absence of such evidence, we conclude that the evidence adduced by the Government amply sustains the conviction. Respondent is no more or less guilty than any other member of the board. If she can escape prosecution by remaining quiescent, so can all the others. If hers is a valid defense, then all that the directors of a corporation need do when they and the corporation are served with subpoenas is to refrain from discussing compliance with the order. No one need make any attempt to comply, for none of them "individually" has control over the action—or nonaction of the corporation. A stratagem so transparent does not cast a shadow of substance."1 appeared before the court and urged their solicitude to comply with the writ. They presented their formal action, taken at a meeting of the board, in which they demanded of the appellant the delivery of the books for production before the grand jury." Id. at 376. In considering this practice it should be noted that in criminal contempts, as in criminal cases, the presumption of innocence obtains; proof of guilt must be beyond a reasonable doubt; and the defendant may not be compelled to be a witness against himself. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444 (1911); United States v. Goldman, 277 U. S. 229, 235-236 (1928); Michaelson v. United States, 266 U. S. 42, 67 (1924). 11 The proposition that one who tries but fails to obtain compliance with a subpoena requiring the joint action of several persons has made a useless and "empty gesture" which should not be compelled by the courts overlooks the fact that if enough members of the governing body make the attempt required by the subpoenas their joint effort will ordinarily be successful. In the Wilson case itself |