333 U.S. 257 (1948)
William D. Oliver was subpoenaed to appear as a witness before a Michigan circuit judge who was conducting a one-man grand jury investigation into alleged gambling and official corruption in accordance with Michigan law.1 The investigation took place in secret, with the public excluded in keeping with traditional grand jury methods, although two other circuit judges were present in an advisory capacity and a stenographer was present.2
After Oliver provided testimony on the subject of the investigation, the judge-grand jury informed him in secret session that his story did not jell.3 This conclusion rested in part on testimony given earlier in secret by at least one other witness whom Oliver had not heard and of whose testimony he was unaware.4 The judge-grand jury immediately charged Oliver with contempt, convicted him, and sentenced him to sixty days in jail, all without providing any opportunity for counsel, preparation of a defense, cross-examination, or the calling of witnesses.5
Three days later, a lawyer filed a petition for habeas corpus on Oliver's behalf in the Michigan Supreme Court.6 The petition alleged that Oliver's attorney had not been permitted to confer with him and that Oliver was not held under any legal commitment.7 The circuit judge responded with an order explaining that he had convicted Oliver of contempt for testifying evasively and giving contradictory answers while sitting as a one-man grand jury.8
The Michigan Supreme Court dismissed the habeas petition.9 The United States Supreme Court granted certiorari to address the procedural due process questions raised by the case.10
Whether an accused can be tried and convicted for contempt of court in grand jury secrecy?11
The Due Process Clause of the Fourteenth Amendment requires that criminal trials be conducted publicly.12 This principle is rooted in Anglo-American history and is reflected in nearly every state constitution and statute because secret proceedings carry inherent dangers of abuse and deny the accused the safeguard of public scrutiny.13
No. Oliver appeared before the one-man grand jury in a secret session from which the public was excluded.14 The judge-grand jury abruptly converted the investigation into a contempt trial, conviction, and sentencing without ever opening the proceeding to public view or allowing Oliver's counsel access even in jail.15 This complete secrecy throughout charging, trial, conviction, and sentencing directly violates the universal rule that criminal trials must be public.16
The secret contempt proceeding denied Oliver due process of law under the Fourteenth Amendment.17
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Justice Rutledge joined the Court's opinion.18 He stressed that Michigan's one-man grand jury combines in a single official the historically separate powers of grand jury, committing magistrate, prosecutor, trial judge, and petit jury.19 This aggregation denies the accused not only the right to a public trial but also the rights to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses, and to have the assistance of counsel.20
It further takes away protection against double jeopardy and denies equal protection by leaving the record on appeal to the sole discretion of the committing functionary.21 Such aggregated authority was unknown to the common law and is at variance with our constitutional tradition.22
Justice Frankfurter filed a separate opinion. He noted that a state may adopt procedures for prosecuting crime that were established in nearly half the states at the time of the Fourteenth Amendment.23 A state may abolish the grand jury or reduce it to a single member and may surround preliminary inquiries with safeguards.24
However, due process requires notice of the charge and a fair opportunity to meet it in open court.25 Frankfurter concluded that the Michigan Supreme Court should be given the fullest opportunity to pass upon the constitutional issues before this Court decided them.26 The precise issues had never been explicitly challenged or passed on by that court in prior cases involving the system.27
Joined by Justice Frankfurter
Justice Jackson dissented, joined by Justice Frankfurter. He argued that the principal ground for reversal, the secrecy of the contempt procedure, was not assigned for review in the petition for certiorari and was not raised in the state habeas corpus proceeding.28 Therefore, it had not been litigated and the record had not been made with reference to it.
When a case from a state court involves a question not litigated below and not raised by the petitioner, the Court should remand the case. The state court should have the opportunity to pass upon the issue rather than this Court deciding it on that ground.29
Whether failure to afford a reasonable opportunity to defend against a charge of false and evasive swearing denies due process of law?30
Due process of law requires that a person charged with contempt receive reasonable notice of the charge, an opportunity to be heard, the right to counsel, the right to cross-examine adverse witnesses, and the right to present testimony, except in the narrow category of misconduct personally observed by the judge in open court that threatens the court's authority before the public.31
Yes. The judge-grand jury convicted Oliver of false and evasive testimony based in part on secret testimony from another witness whom Oliver had never heard or confronted.32 Oliver received no notice, no opportunity to prepare a defense, no counsel, and no chance to call witnesses before being sentenced to jail.33 The alleged misconduct occurred entirely in secret, so it fell outside the narrow exception for contempts committed in open court and personally observed by the judge.34
The failure to afford Oliver a reasonable opportunity to defend denied him due process of law.35
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Justice Rutledge added that the aggregated powers of the one-man grand jury denied Oliver the specific Sixth Amendment protections of notice of the accusation, confrontation of witnesses, compulsory process, and assistance of counsel, rendering the entire scheme incompatible with due process.36 This combination of historically separate functions in one official deprived the accused of basic rights secured by the Constitution and took away protection against double jeopardy.37 The scheme was unknown to the common law at the time institutions crystallized and stands at variance with the tradition of ordered personal liberty.38
Rutledge viewed such state experiments as dangerous departures that risk diluting fundamental guarantees without improving the administration of justice.39