Mr. Justice WHITE, with whom Mr. Justice STEWART joins, dissenting.
The Fifth Amendment safeguards an important complex of values, but it is difficult for me to perceive how these values are served by the Court's holding that the privilege was properly invoked in this case. While purporting to apply the prevailing federal standard of incrimination-the same standard of incrimination that the Connecticut courts applied-the Court has all but stated that a witness' invocation of the privilege to any question is to be automatically, and without more, accepted. W th deference, I prefer the rule permitting the judge rather than the witness to determine when an answer sought is incriminating.
The established rule has been that the witness' claim of the privilege is not final, for the privilege qualifies a citizen's general duty of disclosure only when his answers would subject him to danger from the criminal law. The privilege against self-incrimination or any other evidentiary privilege does not protect silence which is solely an expression of political protest, a desire not to inform, a fear of social obloquy or economic disadvantage or fear of prosecution for future crimes. Smith v. United States, 337 U.S. 137, 147, 69 S.Ct. 1000, 1005, 93 L.Ed. 1264; Brown v. Walker, 161 U.S. 591, 605, 16 S.Ct. 644, 650, 40 L.Ed. 819. If the general duty to testify when subpoenaed is to remain and the privilege is to be retained as a protection against compelled incriminating answers, the trial judge must be permitted to make a meaningful determination of when answers tend to incriminate. See The Queen v. Boyes, 1 B. & S. 311, 329-330 (1861); Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198. I do not think today's decision permits such a determination.
Answers which would furnish a lead to other evidence needed to prosecute or convict a claimant of a crime-clue evidence-cannot be compelled, but 'this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.' Hoffman v. United States, 341 U.S. 479, at 486, 71 S.Ct. 814, at 818; Mason v. United States, 244 U.S. 362, 37 S.Ct. 621. Of course the witness is not required to disclose so much of the danger as to render his privilege nugatory. But that does not justify a flat rule of no inquiry and automatic acceptance of the claim of privilege. In determining whether the witness has a reasonable apprehension, the test in the federal courts has been that the judge is to decide from the circumstances of the case, his knowledge of matters surrounding the inquiry and the nature of the evidence which is demanded from the witness. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814; Mason v. United States, 244 U.S. 362, 37 S.Ct. 621. Cf. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438. This rule seeks and achieves a workable accommodation between what are obviously important competing interests. As Mr. Chief Justice Marshall said: 'The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. * * * When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness.' In re Willie, 25 Fed.Cas.No.14,692e, at 39-40. I would not only retain this rule but apply it in its present form. Under this test, Malloy's refusals to answer some, if not all, of the questions put to him were clearly not privileged.
In November 1959, Malloy was arrested in a gambling raid in Hartford and was convicted of pool selling, an offense defined as occupying and keeping a building containing gambling apparatus. After a 90-day jail term, his one-year sentence was suspended and Malloy was placed on probation for two years. In early 1961, Malloy was summoned to appear in an investigation into whether crimes, including gambling, had been committed in Hartford County, and was asked various questions obviously and solely designed to ascertain who Malloy's associates were in connection with his pool-selling activities in Hartford in 1959. Malloy initially refused to answer virtually all the questions put to him, including such innocuous ones as whether he was the William Malloy arrested and convicted of pool selling in 1959. After he was advised to consult with counsel and did so, he declined to answer each one of the following questions on the ground that it would tend to incriminate him:
'Q. Now, on September 11, 1959, when you were arrested at 600 Asylum Street, and the same arrest for which you were convicted in the Superior Court on November 5, 1959, for whom were you working?