Hook's Hook

COMMON SENSE AND THE FIFTH AMENDMENT (160 pp.)--Sidney Hook -- Criterion ($3).

"Have you stopped beating your wife?" is regarded as the symbol of all loaded questions asked by lawyers. But N.Y.U. Philosophy Professor Sidney Hook contends that the question "Do you now or have you ever beaten your wife?", is an eminently plain question and that anyone who invokes the Fifth Amendment rather than answer yes or no may be fairly suspected by his neighbors of having in fact cuffed the little woman around.

In recent years the "ritualistic" liberals (Hook's own phrase) have built up an entire martyrology of people who supposedly suffered as a result of invoking the Fifth before congressional committees. A leading exponent of this position is Harvard Law School's Dean Erwin Griswold, whose book. The Fifth Amendment Today, Hook takes apart with precision and relish.

Hook holds that the "wisdom and justice" of the privilege against giving self-incriminating testimony are far less self-evident than most of the other provisions of the Bill of Rights. He cites two main reasons given by Griswold in the amendment's support: 1) "It is cruel to require a man to provide evidence of his guilt"-this Hook calls, in Jeremy Bentham's words, "the old woman's reason," pointing out that punishment itself is cruel; 2) "it constitutes a protection for the innocent" --that, according to Hook, is "far from conclusive until we know to what extent ... the guilty profit by it." The fact that in Anglo-American law a man is presumed innocent until proved guilty does not mean that his fellow citizens must abandon their common-sense judgments --"the common sense of the moral tradition of the Western world"--about his actions.

Use by a witness of the Fifth Amendment, Hook persuasively demonstrates, demands a "legitimate presumption," although not conclusive, of his guilt. Hook shows that the reverse attitude, if carried to the logical extreme of its illogic. would make nonsense of law enforcement and justice. To refute Griswold's hypothetical cases of innocent men invoking the Fifth, Hook offers some cases of his own. including that of the man who goes fishing with a companion: a cry and a splash are heard: a drowned body is found. What would anyone think, asks Hook, if the fisherman refuses to reply to questions with the explanation that "my answer would tend to show me guilty of a crime"?

This short, lucid and important book is the best work to date on the subject, and should be the last word for all except the sentimentally prejudiced. At a time when many TV-conditioned minds are nudged towards the "forum" rather than real debate, this argumentative work is a relief. In a wide cast for the high-flying fish of fallacy, Dean Griswold & Co. are firmly caught on Hook's hook.

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