THE FIFTH AMENDMENT

Is It Privilege Abused? Does Silence Imply Guilt?

No person . . . shall be compelled in any criminal case to be a witness against himself.

--THE FIFTH AMENDMENT

HIGH on the program of the American Bar Association meeting in Philadelphia last week was discussion of the Fifth Amendment to the U.S. Constitution. This was fitting, since the A.B.A. was gathered to observe the 200th anniversary of the birth of Chief Justice John Marshall (1755-1835), whose interpretation of what the Fifth Amendment did and did not mean still prevails as the view of most thoughtful U.S. lawyers.

There are--and always have been--grave dissents from Marshall's view. Recently the gaps have widened, and arguments about the Fifth Amendment have extended from the lawyers to the public. Sample differences:

P: At the A.B.A. session, Harvard Law School's Dean Erwin N. Griswold and Seattle Attorney Tracy E. Griffin took precisely opposite stands on what should be done about lawyers who cite the Fifth Amendment. Griffin said flatly that all such lawyers should be disbarred: "Obtaining the truth from a witness, establishing a fact material to the security of the U.S., is more important to the general welfare and the public as a whole than the prosecution of a single individual for his specific crime." Replied Dean Griswold: "Lawyers should be leading spokesmen in trying to explain that sometimes a lawyer who invokes the amendment may be striking a blow for freedom."

P: Last week, before a New York state legislative committee, Miss Janet Moore, a Canadian nurse, pleaded the Fifth Amendment in refusing to name friends who had recommended that she spend her summers at Crystal Lake Lodge at Chestertown, N.Y. and Wingdale Lodge at Wingdale, N.Y., both under investigation as being Communist-run. Miss Moore did not pretend that she feared becoming involved in a criminal prosecution; rather, she insisted that her "own beliefs" prohibited her from naming her friends. Did she have a right to use the Fifth Amendment in such a way? And having used it, should she in any case be granted the U.S. citizenship for which she has applied? A great many people would answer no to both questions; others would say yes.

P: Melvin L. Barnet, a copy editor for the New York Times, recently invoked the Fifth Amendment when asked by the Senate Internal Security Subcommittee about past Communist connections. He was immediately fired by the Times, on the ground that newsmen "owe candor to their colleagues and equal candor to the public." The American Civil Liberties Union strongly protested: "Public respect for an observance of constitutional rights are impaired when penalties are meted out because of the exercise of these rights." Who, from a moral as well as a legal standpoint, was right? The Times, or the Civil Liberties Union?

Principles in conflict

The main line of legal precedent was restated recently by C. Dickerman Williams, a Manhattan lawyer, in an article, "Problems of the Fifth Amendment," first printed by the Fordham Law Review and now being distributed by the Fund for the Republic. Williams, onetime law clerk to Chief Justice William H. Taft, and general counsel for the Commerce Department in the Truman Administration, starts with John Marshall's 1807 ruling in the treason trial of Aaron Burr. Called as a witness was Burr's secretary, a Mr. Willie, who was asked if he had understood a cipher message purportedly written by Burr. Willie refused to answer the question, citing the Fifth Amendment and insisting that an answer would tend to incriminate him. After two days of argument on the point, Justice Marshall ruled that Willie must answer. The great jurist's summary of the arguments on both sides throws light on contemporary debates over the meaning of the Amendment.

Marshall immediately realized that two principles were in conflict. Said he: "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."

In the Burr case, the Government attorneys argued that the Fifth Amendment could be properly invoked only when the answer to a question would, by itself, be enough to convict the witness of a crime. Said Marshall:

"This would be rendering the rule almost perfectly worthless . . . It is certainly not only a possible but a probable case that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction ... It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness."

But Marshall well knew that witnesses might use the Fifth Amendment so as to protect themselves not from criminal prosecution but from social disgrace or other embarrassments. In such instances, he held, the invocation of the Fifth Amendment would be "in conscience and in law as much a perjury as if he had declared any other untruth upon his oath."

On the whole, writes Dickerman Williams, the courts have adhered to the Marshall opinion--but this has not prevented abuses. "In recent years," says Williams, "the public has frequently read of witnesses who invoke the Fifth Amendment, particularly before congressional committees, but thereupon issue statements to the press that they are innocent of any crime . . . This practice has recently received impressive sanction in the form of an article by Dean Erwin N. Griswold of the Harvard Law School, in which he maintains that a man innocent of any crime may rightfully use the privilege when questioned concerning past membership in the Communist Party."

The Hypothetical Professor

The Griswold article to which Williams refers was also circulated under Fund for the Republic auspices. It introduced a hypothetical college professor, innocent of any crime on the statute books, who once joined the Communist Party, participated only in study-group activities, became disillusioned and left the party at the outbreak of the Korean war. The professor was later questioned by a congressional committee. Wrote Dean

Griswold: "Persons have been prosecuted under the Smith Act for membership in the Communist Party plus something else. If [the professor] supplies the proof of his own membership in the party, he does not know what other evidence may then be brought against him to show that he has committed a crime."

To that, Dickerman Williams replies: "Dean Griswold's statement of the basis for Smith Act prosecutions is remarkable in its apportionment of emphasis. The Smith Act forbids attempts to overthrow the Government by force. It makes no reference to the Communist Party and was, in fact, first invoked, to Communist enthusiasm, against Trotzkyites . . . Membership and office in the party are expressly declared by the Internal Security Act of 1950 not to constitute a violation of any criminal statute . . .

"The sensational prosecutions of ex-Communists, which have so much engaged the attention of the public, such as those of Hiss and Remington, have resulted from a denial of party membership. The usual response of a congressional committee to a witness who admits past membership, asserts he has left the party, and identifies his former associates, is to thank and praise him. If there is a single instance of prosecution under the Smith Act following such testimony, Dean Griswold does not mention it.

"It is of interest that Dean Griswold does not even suggest that his professor's fear is reasonable, and indirectly suggests that not fear of prosecution, but an affirmative desire to obstruct the public's right to his evidence, constitutes the true motive for his invocation of the privilege."

The Eccentric Abhorrence

Williams also points to a memorandum in a 1953 issue of the Pennsylvania Law Review as evidence of widespread misunderstanding of the Fifth Amendment. The Law Review writer maintained that no inferences should be drawn from the refusal of a witness to answer questions on grounds of the Fifth Amendment. The note further suggested that the amendment's invocation might properly rest on "an abhorrence of unrestrained inquiry into beliefs" rather than on reasonable fear of selfincrimination.

Answers Williams: "In other words--although the [Pennsylvania] Note does not pursue the analysis to this conclusion--the invocation of the amendment is what Chief Justice Marshall said was 'in conscience and in law as much a perjury as if he had declared any other untruth upon his oath.'

"It may be, of course, that a conscientious citizen will genuinely entertain more of 'an abhorrence of unrestrained inquiry into beliefs' than of perjury. Yet the Government has constantly inquired into men's beliefs but never until recently did it occur to anyone to abhor it ...

"The truth is that matters of the utmost privacy are properly investigated if they appear to have relevance to subjects of public concern . . . One's emotions deserve privacy, yet if the object of emotional attachment is the wife of another man, the law attaches liability to inquiry, or, if she should prove to be a foreign agent, the FBI would be warranted in taking interest. The same reasoning justifies inquiry into Communist Party membership, viz., intimate relationship with the matters of conceded public concern. Even the practice of religious belief [e.g., polygamy] may be made criminal under circumstances involving no national danger.

"The abhorrence must therefore be regarded as an eccentricity. One can admire the eccentric who makes sacrifices that he may persist in his views, but it is hardly appropriate to endanger the national safety so that he can practice his ideology without sacrifice.

"In passing," says Williams, "it is perhaps in order to make another comment on the Pennsylvania Note. The writer of that Note condemns the dismissal of a Government employee for invocation of the amendment in investigations involving loyalty on the ground that invocation has not established disloyalty. This argument, like others arguing against action based upon invocation of the privilege, overlooks the fact that silence in the face of a suggestion of given conduct constitutes in itself evidence of that conduct. It is true that the silence is permitted by the amendment, but that fact in no way detracts from the evidentiary force of the silence . . . What the force may be depends, as is true of all evidence, on the circumstances; but in respect of public employees, the force may properly be regarded as conclusive because of an employee's duty of loyalty to his employer as such--a duty quite apart from the citizen's duty of loyalty to his country."

Aside from the action that employers might decide to take against those who plead the Fifth Amendment, what should be the attitude of the public toward witnesses who refuse to testify on the grounds of selfincrimination? Should society assume that a witness who resorts to the Fifth Amendment is innocent? Or is it justified in inferring guilt?

Williams says that it is "helpful to analyze the inferences which the courts can properly draw under analogous circumstances. It is a general rule in the weighing of evidence that whenever a litigant is peculiarly able to offer testimony on any subject, his failure to do so gives rise to the inference that the testimony, if given, would be unfavorable to his cause . . ."

Williams cites a civil court case which came as an aftermath to the Teapot Dome prosecutions. Asked the Eighth Circuit U.S. Court of Appeals: "Why is the plea of self-incrimination--one not resorted to by honest men--the refuge of [Albert B.] Fall's son-in-law, Everhart? . . . Men with honest motives and purposes do not remain silent when their honor is assailed ... Is a court compelled to close its eyes to these circumstances?"

Changing Fashions

The character of opposition to the Fifth Amendment privilege, says Williams, has vastly changed over the last 50 years. Far from being praised by the class that is today its most liberal interpreter, the Fifth Amendment was attacked by early 20th century intellectual progressives as an obstacle to convictions in antitrust and railroad rebate cases. Recalls Williams: "In 1908, the U.S. Supreme Court analyzed the privilege at some length and concluded that as a human right it was definitely second class . . . The opinion was written by Justice Moody, an extremely able judge and a staunch 'progressive,' appointed by President Theodore Roosevelt, whose Attorney General he had been. Undoubtedly, Justice Moody's views reflected to some extent the indignation of the intellectuals of that day with the invocation of the amendment by corporation officials in antitrust and rebate cases. The opinion continually belittles the sanctity of the privilege, observing inter alia, "It has no place in the jurisprudence of civilized and free countries outside the domain of the common law . . .

"On a later occasion, the Supreme Court, at a time when its membership included many jurists who have deservedly won reputations for their devotion to civil liberty, rather scoffed at the privilege . . . Justice [Benjamin] Cardozo, writing for the court, said 'This [privilege] too might be lost and justice still to be done ... No doubt there would remain the need to give protection against torture, physical or mental. Justice, however, would not perish if the accused were subject to a duty to respond to orderly inquiry.' This language was concurred in by Justices Hughes, Stone, Brandeis, Roberts and Black."

Concludes Williams: "The reader of Fifth Amendment literature cannot fail to be impressed by the subjective character of the approach often displayed. When businessmen and crooked politicians were under fire, comment on the Fifth Amendment in the law reviews and periodicals read by the intelligentsia was very hostile. Since the amendment has come to be invoked by intellectuals in the last few years, there has been a flood of highly sympathetic comment in the same publications . . .

"Would so many law professors of today be so highly indulgent toward those who invoke the amendment if they did not resent, at least subconsciously, investigation of behavior which in their opinion was inspired by motives of idealism?"

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