Dissenting opinion of
Mr. Justice Douglas, with whom The Chief Justice,. Mr. Justice Black and Mr. Justice Brennan concur, announced by Mr. Justice Black.Today’s decision marks such a departure from the accepted procedure designed to protect accused people from public passion and overbearing officials that I dissent.
The Act under .which petitioner goes to prison permits conviction only if he “willfully makes default” as a witness before a congressional Committee. 2 U. S. C. § 192. The subpoena commanded him to produce the records of “the Civil Rights Congress” at a given time and place. But it did not name petitioner as officer, agent, or member of “the Civil Rights Congress.” The record contains no word of evidence to show (1) that petitioner was an officer, agent, or member of the Civil Rights Congress, or (2) that petitioner was in possession of, or was a custodian of, any of the records of “the Civil Rights Congress.” The congressional Committee made no effort to establish these facts. Neither did the prosecutor when this criminal proceeding came to trial. The only evidence, if it can be called such, is the refusal or failure of the petitioner to deny those facts.1 The District Court charged the jury *384that the failure of the prosecution to establish those facts was immaterial for the following reason:
“If you find from the evidence in this case, and beyond a reasonable doubt, that the defendant appeared before the said subcommittee, and then refused or failed to make any explanation with respect to the existence of the records designated in the subpoena, or with respect to whether or not such records were under his possession or control, I charge you that you may not consider the questions of whether the records and documents designated in the subpoena were actually in existence or under the possession or control of the defendant, because if the defendant had legitimate reasons for failing to produce the said records, he should have stated his reasons for non-compliance with the subpoena when he appeared before the said subcommittee.
“I also charge you that the defendant is not excused from compliance with or producing the records designated in the subpoena merely because he is not designated as an officer or agent of the Civil Rights Congress therein; and neither is the defendant excused from such compliance with the said subpoena merely because of any lack of proof of any connection between the defendant and the Civil Rights Congress.”
This theory, now sustained by the Court, permits conviction without any evidence of any “willful” default.
The presumption of innocence, deep in our criminal law, has been one of our most important safeguards against oppression. So far as I can find, this is the first instance where we have dispensed with it. We do so today by shifting the burden to a witness to show that he is not an officer or agent of the organization in question and that he is not able to produce the documents, without requiring *385any proof whatsoever by the prosecution that connects the defendant either with the organization or with the documents. Reliance is placed on United States v. Bryan, 339 U. S. 323. With all deference, that case is irrelevant because there the witness concededly was “the executive secretary” of the organization being investigated and had “custody of its records.” Id., 324. The issue in the case concerned the authority of the Committee to make the demand, authority challenged, at the trial but not before the Committee, because no quorum of the Committee was present when the witness made default. In United States v. Fleischman, 339 U. S. 349, there was also evidence that the defendant had power to cause the documents to be produced. Id., 353-354. In those situations the prosecution proves enough when it establishes custody or power to control. Id., 361-363. As respects the shift of the burden of going forward in a criminal prosecution to the defendant (Morrison v. California, 291 U. S. 82, 88, 90-91), Mr. Justice Cardozo said, by way of dictum, “For a transfer of the burden, experience must teach that, the evidence held to be inculpa-tory 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 . . . .” Id., 90-91. Whatever may be the reach of that dictum, it was not adequate to sustain a conviction in that case and is inadequate here. That case involved a charge of conspiracy to violate the alien land law of California. A citizen, charged as co-conspirator, was convicted on a presumption that he knew of the disqualification of his co-conspirator alleged to be an alien. The holding of the Court was that invocation of the presumption against the citizen denied him due process. Id., 93. The alien was not a conspirator, “however guilty his own state of mind,” unless the citizen “shared in the guilty knowledge and design.” Therefore, *386said Mr. Justice Cardozo, “The joinder was something to be proved, for it was of the essence of the crime.” Id., 93. That ruling rests on the presumption of innocence that is never overcome unless the prosecution introduces some competent evidence implicating the accused in the criminal act that is charged.2 Here the crime is “willful” default in the production of records of “the Civil Rights Congress.” There can be no “willful” default unless this petitioner is shown to have (1) some connection with that organization and (2) some custody or control of its records. Simple questions by the Committee might have produced the necessary answers. It is hornbook law that they should have been asked.3 Yet they were not; and without the foundation which they might have laid, the present prosecution has no starting point unless we are to throw procedural requirements to the winds.
Failure of a defendant to explain why he does not produce documents may be sufficient under the cases, where it has first been shown that he has a connection with them. See United States v. Fleischman, supra, 360-363; Nilva v. United States, 352 U. S. 385, 392. But failure to explain, where no proof of the defendant’s connection with the documents is shown, is like taking his action in standing mute as a confession of guilt. Once that was the rule. See In re Smith, 13 F. 25, 26-27; Beale, Criminal Plead*387ing and Practice (1899), p. 52. Once it was the rule that a man who refused to take an oath and answer in criminal proceedings was held in contempt. Trial of Lilburn, 3 How. St. Tr. 1315. See Maguire, Attack of the Common Lawyers on the Oath Ex officio as Administered in the Ecclesiastical Courts in England, Essays in History and Political Theory (1936), c. VII, p. 215.
Today we take a step backward. We allow a man to go to prison for doing no more, so far as this record reveals, than challenging the right of a Committee to ask him to produce documents. The Congress had the right to get these documents from someone. But, when it comes to criminal prosecutions, the Government must turn square corners. If Congress desires to have the judiciary adjudge a man guilty for failure to produce documents, the prosecution should be required to prove that the man whom we send to prison had the power to produce them.
The respondent claims that the Committee, if not the court, had a “reasonable basis for believing that petitioner could produce the records.” That basis turns out to be a letter in the Committee files which the respondent made no attempt to link up with petitioner and which, for that reason, was never admitted into evidence.
The assaults on this presumption have been vigorous and a few lower courts have succumbed as Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L. J. 1149, shows.
Counsel for the Committee repeatedly asked petitioner to comply with the subpoena, but only once did he venture near the question of petitioner’s power to comply. In the context of petitioner’s invocation of his privilege against self-incrimination, Mr. Tavenner asked "if [petitioner] has any other reason for refusing to produce the documents called for.” Again, the assumption is that the mere issue of the subpoena without more casts on the witness the burden of explaining non-compliance.