Logic and the Fifth Amendment
HOOK, SIDNEY
First of Four Articles LOGIC AND THE FIFTH AMENDMENT By Sidney Hook Here we present the first of four articles on "Common Sens?and the Fifth Amendment," by Sidney Hook—essays which later...
...Is there a legitimate presumption that a person who invokes the privilege is guilty of what he is being questioned about—whether the matter of inquiry be venial or venal...
...I hope it will bring home the importance of recognizing certain distinctions hitherto unobserved...
...If our argument is sound, regnant doctrine about the self-incrimination provision of the Fifth Amendment is based upon an egregious fallacy...
...One rubs one's eyes...
...The peripheral reason is that it protects the citizen, guilty or innocent, against the Government...
...How far the court has gone from the position is apparent in Mr...
...As one judge put it who must have read Bentham to some purpose: "Instant impulse, spontaneous anxiety and deep yearning to repel charges thus impugning his honor would be expected from an innocent man...
...This: that the probability that they conducted Communist activity at "Harvard or Cornell" is at least as great as the probability that they conducted such activities at Cornell or that they conducted such activities at Harvard...
...Absurd...
...So far, Dean Griswold has failed to offer any novel and valid reason in defense of the privilege against selfincrimination as a principle of procedure...
...Bentham would have made much of certain current practices like compelling a defendant, by force if necessary, to surrender his fingerprints, which may be gravely self-incriminating...
...He maintained that the relevant provision of the Fifth Amendment "might be lost and justice still be done...
...A good many efforts have been made to rationalize the privilege, to explain why it is a desirable or essential part of our basic law...
...Or if we heard a cry and a splash and then found the body of a man who was known to have gone fishing with a companion, what would we think if his companion, who is "innocent until he is proved guilty...
...It is of the highest importance to examine carefully the logic of their argument, since it constitutes the nub of their position...
...Does Schacht's "legal" exoneration at Nuremberg absolve him of the moral guilt of cooperating with Nazi cruelty and infamy...
...The ordinary connotation of the phrase "to be a witness against himself" suggests that the defendant may not be asked questions the truthful answer to which would tend to support a conviction under a criminal statute...
...Indeed, his refusal to say always counts as evidence against him no matter what his motives are for refusing —with one exception...
...The question is: Not knowing whether a person is innocent or guilty, what can reasonably or naturally be inferred from a refusal to answer a pertinent question, put by someone authorized to ask the question, on the ground that a truthful answer would tend to be incriminating...
...We are not yet through...
...He is legally justified, says Dean Griswold...
...I am indebted to Mr...
...Why should it be different, once he is questioned, with his refusal to say...
...This is denied by Dean Griswold, by Professor Chafee, by Telford Taylor, and, more unfortunately, by some Supreme Court Justices...
...He is simply being requested to make a truthful answer to a relevant question in the plaintiff's case against him...
...The concept of self-evidence is epistemologically troublesome but the point I am making does not depend upon it...
...than for a man to be required to answer questions which would tend to incriminate close friends, and even father, sister, mother and child, a practice permitted in AngloAmerican legal procedure, and which is not condemned by Dean Griswold and others who accept the reasons he gives in justification of the privilege against selfincrimination...
...Some observers have commented that it all depends on whose ox is being gored...
...Justice Cardozo in one of his obiter dicta asserted that the privilege against self-incrimination was not essential to either justice or "a scheme of ordered liberty...
...If he makes a truthful answer and denies membership, he might have to explain his Communist front activities...
...In actual court cases, a defendant or any witness who voluntarily takes the stand waives his privilege against giving selfincriminatory answers with respect to any relevant aspect of his testimony...
...Culpability alone seals their lips...
...The Supreme Court has extended this doctrine of waiver to witnesses before Congressional committees (Rogers v. United States, 340 U.S...
...If he refuses to tell us whether or not he fired the gun which killed Jones, not on the ground that it is none of our business but on the ground that a truthful answer would tend to incriminate him, which conclusion would be more likely, granted that no conclusion is certain: (1) that Smith had something to do with Jones's murder, or (2) that Smith had nothing to do with it...
...which might be taken as another reason for the privilege against self-incrimination...
...240 Mass...
...It will be more comprehensive or less depending upon how the Justices of the Supreme Court in the future interpret it...
...To the extent that, and in places where, this is true, it seems warranted to assert that the relevant provisions of American law enable a witness legitimately to refuse to answer many more questions about himself than he would be free to refuse to answer on the Continent...
...His procedure is very instructive...
...This contradicts the view according to which a man must always be regarded as innocent until he is proved legally guilty...
...It is theoretically conceivable that love and not culpability may seal the lips of a person accused of a heinous crime and Dean Griswold could easily hypothesize such situations...
...It is inconsistent with other procedures...
...How many limes have gangsters been legally acquitted because witnesses against them disappear and then turn up as corpses...
...407, 423 (1922)] The learned judge has read Bentham too well and imbibed some of Bentham's extremism...
...The responsibility for the position taken is mine, of course...
...but what they declare as the meaning of the Constitution is not necessarily desirable from the point of view of a valid morality and a wise social policy...
...If one compares the privilege against self-incrimination with the other provisions enumerated in the Fifth Amendment, it is apparent at a glance that the right not to be placed in double jeopardy for the same offense, not to be put on trial for one's life without a presentment or indictment of a grand jury, and not to be expropriated of one's property without just compensation are much more easily defensible...
...One can be opposed to both corruption and conspiracy, and take different views about how they should be most effectively, countered...
...For although there have been defenders of the privilege as a legal safeguard, no one hitherto has assumed—at least no great jurist or philosopher of law —that there is any moral grandeur involved either in its invocation or in its retention as a procedural principle...
...In a divorce action, this evidence gives rise to a presumption that drinking tea wasn't the only purpose for which he was there...
...Aside from the limitations, a witness is not excused from testifying on grounds of self-incrimination...
...We grant that affirmative answers to these questions are compatible with the logical possibility of innocence...
...But if it is true that, once a witness replies positively or negatively to a question A about a subject, he loses his privilege not to reply to any subsequent questions B, C, D, etc...
...What Dean Griswold leaves unexplained, on the hypothesis that nothing could be legitimately inferred about the twins' activity from their invocation of the privilege, is not only why he felt called upon to investigate their careers at Harvard Law School but his common-sense assumption that they answered as they did when ashed about Harvard because they wished to conceal the nature of their Communist activities at Cornell...
...And it is hard to understand why it is more cruel for a man to be required to answer questions which would tend to incriminate him, something condemned by Dean Griswold...
...Consequently, if a witness is asked whether he joined the Communist party or a Communist espionage ring in a year before he was born, he can invoke the privilege against self-incrimination because he fears that if he answers it he will have to answer a question about his membership in recent years...
...Not unrelated to the particular emphasis Dean Griswold gives his discussion are his observations about the nature of Communism and anti-Communism, the history of the Fifth Amendment, and its moral significance...
...It is, of course, true that the first principle can be "thought of" as a "companion" of the second...
...the privilege against self-incrimination cannot be reasonably considered a companion of the rule that "a man is innocent until he is proved guilty...
...Our expectations are raised to an even greater pitch by Dean Griswold's declaration that the privilege...
...The purpose of the inquiry was to uncover the pattern of Communist penetration in educational institutions...
...It does not carry with it the aura of indefiniteness and ambiguity which attends some of the other provisions of the Fifth Amendment like "No person shall be . . . deprived of life, liberty, or property, without due process of law...
...This asserts that if there were no privilege against self-incrimination there would be a tendency on the part of law-enforcement authorities to resort to physical coercion against suspects instead of engaging in efficient search for evidence...
...What follows...
...This may be granted and the assertion made that the situation would be much worse if the privilege were not recognized...
...Men have been convicted—even hanged—on the best of evidence for crimes which subsequently it turned out they did not commit...
...The law cannot make that inference logically illegitimate...
...The privilege against self-incrimination was invoked long before the Communists appeared on the scene...
...The first reason is that it is cruel to require a man to provide evidence of his guilt...
...but in his own hand, or from the mouth of another, you receive it without scruple...
...It is false that culpability alone seals their lips...
...None of the explanations is wholly satisfactory...
...Supreme Court extends not only to criminal court cases but, with certain narrow exceptions covered under Federal Rules of Civil Procedure, to non-criminal court proceedings...
...319) This is an extreme view, and it is indicative of the climate of the times that when the opinion was written none of the following Justices demurred: Black, Brandeis, Hughes, Roberts and Stone...
...With respect to the privileges of witnesses, not defendants, in withholding testimony, the provisions of the Italian Criminal Code, if not typical, seem general...
...Although we owe him a debt of gratitude for lifting the subject out of the arena of narrow partisan politics, it unfortunately illustrates some of the key fallacies in discussions of the problem...
...The analysis contests the easy assumption made even by some Justices of the Supreme Court that because the invocation of the privilege against selfincrimination does not establish a conclusive presumption of guilt—since an innocent person may invoke it...
...Further, the privilege against self-incrimination is not found in Roman Law, Canon Law, Magna Carta, the English Bill of Rights or Petition of Right, the Declaration of Independence, or the French Declaration of the Rights of Man...
...If any other procedure were followed, the guilty could never be properly convicted...
...The law in question may be unjust...
...second, whether the legal rule which prevents us from pointing out this logic is wise, just or humane...
...Sound reasons...
...We must, therefore, rephrase our question: Is it self-evidently wrong to require a defendant or witness to give testimony at all...
...An organizer of the Conference on Methods in Philosophy and Science and of the American Committee for Cultural Freedom, Professor Hook has also been a frequent contributor to The New Leader, the New York Times Magazine, Commentary, Partisan Review and several philosophical journals...
...A man is still legally innocent even when there exists some ground for doubting his innocence or believing his guilt...
...The unwary reader can easily misunderstand this, but I am uttering commonplaces which appear paradoxical because I am counterposing them to absurdities...
...The individual in question denies present membership but in reply to questions about past membership invokes the Fifth Amendment...
...That the jury has no right to conclude he is guilty...
...Grant that a man is innocent until he is proved guilty...
...These students knew that if they answered the question truthfully in the negative concerning Harvard they would have to answer the question concerning their membership and activity at Cornell, on which testimony involving them had been given...
...In other words, additional evidence refuted the presumption with respect to Harvard but not Cornell...
...Should we therefore relieve a witness from the obligation of answering a question today if his answer to it would tend to incriminate others...
...Supreme Court Justices are right about what the Constitution means, since they declare its meaning...
...At first glance, this seems definite enough...
...Or that it is a good safeguard for the accused...
...The exception cannot be justified by the logic of inquiry, since in affairs of war or peace, science or business, refusals of this kind may constitute excellent evidence...
...Jeremy Bentham and his editor, John Stuart Mill, taught that it had neither legal nor moral justification...
...An innocent man normally protests his innocence...
...This is, of course, a drastic oversimplification, but it raises a genuine question about the sufficiency of this reason to justify the privilege against self-incrimination...
...The reason is that it is an attribute of human nature to resent such imputations...
...The presumption, of course, may be rebutted...
...I refuse to tell you because if I answered your question truthfully it would tend to show me guilty...
...Whatever constitutional protection the privilege against self-incrimination gives in safeguarding him from lawless police officers is given just as effectively by the due-process clause of the Fifth and Fourteenth Amendments...
...There is an obvious need for a defense of the privilege against self-incrimination in view of the fact that outstanding thinkers like Jeremy Bentham have held not only that there is no justification for it but that it is a positive mischief and an obstacle to justice...
...Every piece of direct and circumstantial evidence points to his guilt...
...Finally, the maxim or rule "a man is innocent until proved guilty" may mean only that the burden of proof must rest with the prosecution in criminal cases and with the plaintiff in civil cases...
...In a certain class of cases, this is hardly contestable...
...One could elaborate these cases with details as one pleased, which would suggest that either or both men are dangerous malefactors and perjurors to boot...
...If we take Dean Griswold's illustrations as a paradigm of his discussion of such questions, then having started from an assumption or hypothesis about the man's innocence the answer is clearly no...
...Unfortunately, the discussion provoked by this interest has very often been carried on in an excited rhetoric which has obscured basic issues...
...To avoid answering the second question with impunity, he must invoke the privilege with respect to the first...
...It is safe to say that many who have discussed the question have been overly influenced by two sets of facts...
...Motive and opportunity have been proved...
...That is all...
...Surprisingly enough, not allowing for the vagaries of students, Dean Griswold asserts that if they had done these things their connection with the school would have been terminated, thus depriving Harvard of an opportunity of re-educating them...
...If the laws are determining, then existing statutory laws make most third-degree practices illegal, and the laws could be strengthened by easily enacted supplementary provisions...
...The reader will note that the operating phrase in the previous sentence is "some legitimate presumption...
...as Bentham points out...
...Dean Griswold answers: "No...
...This methodological error has betrayed not only Dean Griswold but many others...
...It presses upon us...
...It would be hazardous to charge Bentham, the man who played such an heroic role in humanizing and liberalizing the laws of England, with sadism or insensitiveness to human suffering...
...Bentham, following the lead of common sense, points out that there is a general psychological connection between innocence and truthfulness, and between guilt and delinquency, in giving honest and candid answers to relevant questions...
...The question, I repeat, is not whether as a purely logical possibility (or even on a bare chance) an innocent person can invoke the Fifth Amendment...
...Now if a man is compelled to expose his own guilt by torture or threat of torture, this is certainly cruel and should not be countenanced in civilized society...
...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...
...But did it ever vet occur to a man to propose a general abolition of all punishment, with this hardship for a reason for it...
...It is not likely to be acceptable to those who welcome non-conformity except when thinking does not conform with their own prepossessions...
...Italics supplied to indicate section of the Amendment under discussion...
...He confesses, or is prepared to do so, in open court...
...The defendant is asked not to prove his innocence but only not to conceal evidence necessary to establish the truth and a just outcome...
...Something may be said in support of one of the dogmas of the "new criticism" that a poem, drama or any other work of literature can be understood in its own terms without reference to ideas and events that fall outside its self-contained structure...
...367...
...And suppose we did not know that Smith had nothing to do with the murder of Jones, which approaches the situations in real life...
...The more basic question, however, must be faced...
...No matter how we decide question two, it has no more bearing upon the validity of question one than upon any other proposition about inductive logical relationships...
...The second case is of a college teacher who by hypothesis never was a member of the Communist party, who despite the fact that he joined umpteen Communist front organizations is absolutely pure of heart, also by hypothesis...
...It must go by the evidence...
...Outside the context of legal procedure, the most comprehensive meaning of the expression "a man is innocent until proved guilty" is that a man should be considered morally innocent until warranted evidence or good reasons exist to believe otherwise...
...and in making a derogatory inference from his continued refusal...
...He is the author of The Metaphysics of Pragmatism (1927), Towards the Understanding of Karl Marx (1933), From Hegel to Marx (1936), John Dewey—An Intellectual Portrait (1939), Reason, Social Myths and Democracy (1940), The Hero in History (1943), Education for Modern Man (1946), Heresy...
...Indeed, the point is important enough to stress...
...It may be right, but it is certainly far from being selfevidently right...
...Today liberal opinion, or those currents of thought I have elsewhere called ritualistic liberalism, takes a jaundiced view of Congressional investigations, especially of Communism...
...if so...
...A man is legally innocent until he is proved legally guilty...
...Now the situation is that we do not know whether the individual charged with a crime is actually guilty or innocent...
...When the author was young, the mark of the conservative was his fetishism of the Constitution, his belief that to be constitutional was to be wise, unconstitutional to be foolish...
...The courts have held that no witness is required to state the ground on which he believes his answer might be self-incriminating since he could not state the ground without running the risk of incriminating himself...
...Literally the common sense of the moral tradition of at least the Western world, including the common sense of those who believe that the invocation of the privilege does not warrant an adverse inference...
...This is its sole operational significance...
...his privilege extends to questions in which by common agreement his answers could not possibly incriminate him—provided those questions are in a field or are about a subject which might give rise to questions the answers to which would be self-incriminating...
...it can only rule out its legal relevance or, more strictly, try to rule it out where men of common sense hear testimony...
...There must be sufficient grounds to indict before there are sufficient grounds to convict: otherwise, a defendant is being victimized...
...his Rationale of Judicial Evidence, Part IV, Chap...
...These special cases cover close relatives, privileges of confessional and professional secrecy, and the exercise of the responsibility of a Government post...
...But he left no doubt that he thought it was being grossly abused and that the prime duty of the citizen in a legal proceeding, subject to certain special circumstances, is "to give what evidence one is capable of giving...
...All sorts of questions have been confounded in the discussion—legal, ethical, logical, psychological, historical and political...
...a question is not a thumbscrew...
...There seems good reason to doubt this...
...For example, Professor Zechariah Chafee Jr...
...It seems curious to me that Dean Griswold's book has had so much more influence in legal, especially judicial, circles than C. Dickerman Williams's article on the subject (24 Fordham Law Review 19...
...At the very least, there is a presumption of guilt...
...134 N.E...
...nd with respect to punishment, after guilt is established, that punishment is morally bad whose ends—rehabilitation, deterrence and justice can be achieved by a lighter or lesser degree of punishment...
...Dean Griswold must have had Wigmore in mind—and rightly so...
...Taken strictly, the maxim means a man is legally innocent (or not legally guilty) until he has been proved legally guilty...
...There is no guarantee that he will be another Justice Holmes or Brandeis or Cardozo—and even they were not infallible...
...Before leaving this aspect, however, we must mention briefly a reason offered by Wigmore and repeated by many other writers on the subject...
...First of Four Articles LOGIC AND THE FIFTH AMENDMENT By Sidney Hook Here we present the first of four articles on "Common Sens?and the Fifth Amendment," by Sidney Hook—essays which later this year will be made the basis of a full-length book...
...This takes in a tremendous amount of ground, even aside from the difficulty of telling whether the witness's answer (1) might furnish a link in the chain of evidence, (2) would furnish a link or (3) whether his belief that it would or might justifies him in invoking the privilege, although in actual fact his truthful response would do no such thing...
...The book gives a sympathetic account of some hypothetical cases of individuals who have invoked the privilege and for whom Dean Griswold pleads warmly as decent if somewhat confused people...
...This seems to me to be unduly cynical...
...Attorney General v. Pelletier...
...The presumption which may legitimately be drawn from the invocation of the Fifth Amendment is not necessarily sufficient or conclusive evidence of guilt or involvement with respect to the issue under inquiry...
...In other words, there must in justice be some ground for doubting a persons innocence or regarding him as guilty before be is tried in order to determine his legal guilt...
...Nothing can be said in support of such a view in the reading and understanding of legal documents...
...The remaining articles will appear in the next three issues of The New Leader under the titles "Psychology and the Fifth Amendment," "Ethics and the Fifth Amendment," and "Politics and the Fifth Amendment...
...Only that staunch conservative, Mr...
...To return to X. His silence constitutes, as a rule, a more weighty ground for doubting his innocence than his lack of candor...
...indeed, very promising, for if he is successful in doing this he will have succeeded in achieving something which even the great Wigmore did not altogether bring off...
...The phrase "criminal case" in ordinary parlance suggests a criminal court proceeding...
...In the course of the discussion I shall have occasion to criticize many of the arguments advanced in behalf of retaining the Fifth Amendment as a legal safeguard, not because I am opposed to retaining the privilege against self-incrimination—indeed, I know of no one who urges that it be abolished—but because these arguments appear to me to be so weak and mistaken that they have led people to deny that any prejudicial inference in a non-legal context is justifiable from the use of the privilege in a legal context...
...264, 316...
...To assess its weight, it must be taken into account in relation to all other pieces of relevant evidence, including the bearing and mien of the person who makes answer...
...Further, this view is inconsistent with the acceptance of other lines of evidence which may be just as self-incriminatory as oral discourse, e.g., a man's letters and diaries...
...Even more striking, the privilege may be invoked not only in court proceedings but in any kind of legislative proceeding, particularly in Congressional hearings...
...At present every person arrested can refuse to reply to any question in the absence of counsel...
...How much more so if he were to say...
...Whether the position is regarded as "liberal" or "conservative" is a matter of indifference to me, particularly since these terms have become shibboleths of the doctrinaire...
...The extent of the privilege, however, as interpreted by the Supreme Court, goes much further...
...Suppose X is asked to explain his possession of the stolen property and he refuses to speak...
...Suppose stolen property is found in the possession of X. Is it not more likely that he is a thief than that some indeterminate Y. picked at random, who does not possess the property, is a thief...
...After all...
...Such explanations might embarrass him and others...
...He should have written culpability usually or commonly seals their lips...
...Who proved Hitler legally guilty...
...refers to "the possibility [my italics —S.H.] . . . that the witness is an innocent man, who claims the privilege because he has got into a situation where he is apparently guilty of a crime he did not commit" (The Blessings of Liberty)—as if this invalidates the justifications of an inference about the probable guilt of one who exercises his legal right to the privilege...
...The Wickersham Commission offered incontestible proof of that fact...
...In the form in which it has most frequently come up, the question is: If a person refuses to answer a legitimate query concerning his membership in the Communist party or his activities as a Communist on the ground that a truthful answer would tend to incriminate him, can we legitimately infer that he is or was a member, that he is or was active in Communist work...
...Suppose now that X is innocent, he has found the property or it has been planted on him or he never saw it before...
...If that is sacred which is beyond question or the possibility of being questioned, nothing is sacred to the life of intelligence...
...There may be other causes which explain inconsistencies and differences in attitude toward different groups which invoke the Fifth Amendment, but the intellectual confusion which attends the discussion would be sufficient to account for it...
...Specifically, not knowing the hypothetical assumptions about Dean Griswold's two individuals, is the natural inference justified from the answers of the first that there is a good presumption he was a member of the Communist party, and from the answers of the second that he is a member...
...Is it not wildly improbable that he will remain silent in the face of the danger from the law, the censure of society, the heartbreak of friends and family...
...The truth is that they are treated no differently from those who invoke the privilege...
...New reasons...
...In order to avoid answering the latter question, they avoided answering the former question by invoking the Fifth Amendment...
...Justice Butler, dissented...
...Williams for his helpful criticisms of the original draft of this series of articles...
...After all, it is self-evidently wrong for a defendant or witness to give false testimony, for every system of law frowns on perjury...
...In such cases it is surely false to say that we hold, or should bold, a man morally innocent or blameless until be is proved legally guilty...
...It has a logical, legal and moral right to conclude that the man is guilty (even though by hypothesis he is innocent), because the class of inferences in cases of this kind leads to true results in the overwhelming majority of situations which arise...
...refused to reply whether he pushed him into the water and grounded his refusal with the statement...
...This brings us to the case of the Harvard twins, which Dean Griswold uses to illustrate his position (1955-6 Marquette Law Review 148...
...Lawlessness on the part of arresting officers, unfortunately, has not disappeared...
...In other words, the term "criminal" might just as well be dropped...
...The thesis of this series of articles challenges most contemporary legal thinking and writing on the subject...
...The use of third-degree methods against suspects has always been widespread despite the recognition of the privilege against self-incrimination...
...That is why the invocation of the privilege always gives rise to some legitimate presumption, weak or strong depending upon the attendant circumstances and evidence, but nonetheless a presumption of guilt either with respect to the specific question or the class of related questions the answers to which are refused...
...Although I believe there is justification for retaining the privilege against selfincrimination as a legal procedural principle...
...Therefore he invokes the privilege with respect to the question about membership in the Communist party...
...Even though by hypothesis he is innocent, the obvious fact is that the jury does not know this any more than we know the hypothetical innocence of the individuals described by Dean Griswold...
...Everyone would be an actual or potential suspect...
...But common sense may be mistaken in these matters, retorts Dean Griswold...
...If a man charged with murder, kidnapping or treason refuses to affirm or deny his guilt, wherein does the cruelly lie in insisting that as a citizen of the community, enjoying the protection of its laws, "he has a duty to respond to orderly inquiry...
...Liberalism at that time maintained that the Constitution, although remarkable testimony to the political prescience of the Founding Fathers, was a human document whose meaning depended upon what the Supreme Court said it meant...
...Since by hypothesis he does not belong to the Communist party, and has not been guilty of any of the monstrous actions he is questioned about and to which he refuses to give an answer on the ground that a truthful answer would he selfincriminating, any natural inference on our part that he is a member of the Communist party and/or has something compromising to hide is illegitimate and mistaken...
...But cannot his invocation of the privilege against selfincrimination sometimes at least be legitimately considered as part of the evidence of his guilt...
...The second is that these questions have been put by Congressional committees whose purposes or personnel are extremely controversial...
...Further, it turns out that the normal presumption that this privilege is one enjoyed by the defendants is mistaken...
...For outside a legal context they think just like everyone else on the matter...
...But the question is: Is it a legitimate presumption...
...He then adds boldly and bravely: "I am going to offer my own attempt to express the reason for the Fifth Amendment, and why I think it is a sound provision of our basic laws, both Federal and state...
...Not one of them has any relevant logical bearing on the privilege against self-incrimination...
...Truthfully, my answer would tend to show me guilty of a crime...
...We should be all the more grateful therefore to Dean Griswold's small but enormously influential book on The Fifth Amendment Today, for it contains not only a comprehensive discussion of the legal aspects of the Fifth Amendment but a forthright and eloquent defense of the provision...
...Yes—Conspiracy, No (1953) and The Ambiguous Legacy: Marx and the Marxists (1955...
...But if anyone concludes that Smith is guilty he would be completely wrong, because by hypothesis "he had nothing whatever to do with the murder of Jones...
...This is...
...Smith invokes the privilege against self-incrimination...
...Needless cruelty is one of the worst moral offenses...
...Think of the agony and heartbreak involved in kidnapping cases, where even the payment of ransom money is no assurance that the victim will be restored alive...
...who calls it "the old woman's reason...
...In ordinary life, however, we cannot determine legal guilt or innocence by postulate or assumption...
...The problem of lawless police, as a comparison of English and American practices shows, is one of administration and public morale...
...Normally he does...
...It should be obvious by now that a reading of "the plain text" of the Constitution would never enable us to tell that the meaning of the self-incriminatory clause of the Fifth Amendment is so comprehensive...
...A signature attested to by a saint may be overwhelmingly satisfactory evidence to us of its genuineness, more so than if it were attested to by a regiment of publicans, but it may not have any probative value if the rules of evidence require two witnesses to a document...
...nor shall private property be taken for public use without just compensation...
...If an individual had kidnapped a child, which alternative would be more cruel—to require him to answer questions in an orderly inquiry to establish the truth, which might lead to the apprehension of his confederates or the recovery of the victim, or to permit him to get off scot free if his truthful testimony could with impunity be witheld...
...It is hard upon a man to be obliged to incriminate himself...
...And did we need the Nuremberg trials to prove that Goering was a monster...
...During the Twenties and Thirties, when liberal opinion in the United States largely welcomed Congressional investigation, it deplored the occasional resort to the Fifth Amendment by those who ran afoul of the attempt to uncover monopoly, corruption and crime...
...To Bentham, Dean Griswold's reason is the veriest sentimentality: "Nor yet is all this plea of tenderness, this doubledistilled and treble-refined sentimentality, anything better than a pretense...
...and if not, they could find as good, if not better, protection under the due-process clause of the Constitution...
...The two are not related in the manner Dean Griswold suggests...
...There are apparently fashions in ideas as in dress...
...It is sufficient to say that the privilege against giving self-incriminatory testimony is far less evident than most of the rights and privileges of the Bill of Rights in the American Constitution...
...in our dealings with human beings in ordinary affairs, do we necessarily bold a man morally innocent or blameless when be has been declared legally innocent...
...Palko v. Connecticut, 302 U.S...
...Nor do we hold a man necessarily morally guilty when he is proved legally guilty...
...C. Dickerman Williams, in his searching and learned essay '"Problems of the Fifth Amendment" (24 Fordham Law Review 38), calls our attention to a host of circumstances in law...
...If it is justified in law, it must be on some other basis...
...From his own mouth you will not receive the evidence of the culprit against him...
...Twenty witnesses swear that they saw him commit the crime...
...Those who approve of them have tended to believe they can do no wrong, those who disapprove that they can do no right...
...Whether we approve of the inquiry is not here relevant...
...The plaintiff builds up a case by knowing which questions to ask that are material to the issue...
...Agreed...
...What is no less hard upon him is that he should be punished...
...And a refusal to answer on grounds of possible self-incrimination constitutes, on its very face in all moral situations, relevant evidence of the involvement of the individual questioned...
...It has confused two things: first, the question of whether the canons of ordinary scientific logic justify a presumption of guilty when the Fifth Amendment is invoked...
...In 1945, Columbia University awarded him a Butler Silver Medal for distinction in philosophy...
...Asked whether they held Communist meetings or collected Communist dues in their rooms at Harvard Law School, they invoked the Fifth Amendment...
...the punishment for refusal to answer a question is much milder than the punishment for the crime of which he is presumably guilty...
...Differing attitudes on the Fifth Amendment, and toward those who invoke it, cannot be correlated legitimately with conservative or liberal social and economic opinion...
...In cases where the invocation of the privilege enables a guilty person charged with a crime to escape conviction, the possible cruelty to the victims, actual and potential, may offset whatever cruelty there is in requiring the person charged to make a material response...
...It is entirely conceivable that a good case could be made for retaining the privilege for actual criminal proceedings in the court room and restricting it before Congressional committees, or for circumscribing it so that the privilege may be legitimately invoked in answer to all criminal charges except those involving kidnapping, murder and treason, or for preserving its almost unlimited legal latitude but bringing to bear in certain areas immunity statutes which trade immunity from prosecution for relevant information...
...But the alternative of not requiring him to answer relevant questions might in the end have consequences of greater cruelty...
...A witness in any proceeding need not answer any question a truthful answer to which might furnish "a link in the chain of evidence" required for prosecution under some criminal statute (Blau v. United States, 340 U.S...
...He asserts that the privilege against self-incrimination can be "thought of as a companion of our established rule [in AngloAmerican law] that a man is innocent until he is proved guilty...
...The historical development of the meaning of the privilege against self-incrimination indicates that there is an initial implausibility in the view that we must accept it in an "all or nothing" spirit...
...In Continental Law, the situation is complicated by the fact that the defendant is not sworn to tell the truth...
...The maxim "a man is innocent until he is proved guilty" has several different meanings, depending upon context...
...Would we not assume that, taken together with the conjunction of all the known circumstances, this was some evidence of culpability...
...even though both are registered under false names...
...The behavior of the police is much more dependent upon the state of public opinion and the level of the judiciary than on the presence or absence of this specific constitutional provision...
...Indeed, as in the past, there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether...
...therefore no inference of presumption of guilt or unfitness in whatsoever degree is justified...
...He is asked whether he is a member of the Communist party...
...or "Did you fire the gun which killed Jones...
...Obviously, it is not a logical companion in that the first entails the second or the second the first...
...And he is also permitted to call attention to awkward phases of the situation or aspects of compromising testimony which the defendant made no attempt to explain...
...A man may be merely drinking tea in a woman's hotel bedroom at 2 a.m...
...The trial which establishes legal guilt is the process by which we go from a warranted suspicion of guilt to the warranted assertion, warranted under the rules of evidence, of legal innocence or legal guilt...
...How is it with our own thinking in ordinary affairs...
...This is by no means shifting the burden of proof to the defendant so that he will have to prove his innocence...
...If everyone should be regarded as innocent until proved guilty, on what possible moral or legal grounds should anyone be indicted or arrested...
...The actual meaning of the phrase, however, as interpreted by the U.S...
...What could be inferred from the testimony of the Harvard twins...
...Dean Griswold adds that subsequent investigation led to the conclusion that they had not engaged in Communist activities at Harvard...
...But we are leading with common-sense inferences in situations where a grave charge is made, the witness remains silent, and no evidence is present that the witness is sacrificing himself for someone else...
...Dean Griswold then adds that from the fact of his invocation nothing derogatory, except possibly his foolishness, can be inferred because by hypothesis he is innocent of any wrongdoing...
...It was lawful, even though it may have been unnecessary or unwise...
...That exception is when a truthful answer would tend to incriminate him...
...But why does it follow that, if we are making a case against the defendant, we cannot in the interest of truth and justice question him, under appropriate safeguards against bullying and intimidation, ask for a truthful answer, and draw an adverse inference, prejudicial to him, if he refuses to reply on grounds that a truthful answer would tend to be selfincriminating...
...Dean Griswold devotes many pages to proving that a perfectly innocent man might legitimately claim the privilege, as if this disproved the assertion that a legitimate inference of probable guilt could be drawn whenever the privilege is invoked...
...about that subject, and to avoid doing this therefore invokes his privilege with respect to question A, can we still draw a legitimate inference from his invocation of the privilege with respect to the entire series of questions A, B, C, D? My answer would be affirmative...
...If a child left alone with the cat refuses to reply to the question whether he locked it in the refrigerator, the refusal certainly has some evidential weight that he did...
...It covers all witnesses, whether defendants or not...
...No one who reads the Fifth Amendment to the Constitution without reference to the decisions of the U.S...
...The standpoint from which this series is written is one of an unreconstructed liberalism that recognizes the primacy of morality in law, and the centrality of intelligence in morality...
...He asks us to postulate or hypothesize the case of an individual who joined the Communist party but who is entirely innocent of any kind of misconduct, professional, political or criminal...
...In the face of such accusations, men commonly do not remain mute but voice their denial with earnestness, if they can do so with honesty...
...But we must first know what the force of the word "companion" is before we can judge whether the comparison is well thought of...
...Is it self-evidently wrong to require a defendant or witness to give truthful testimony...
...Professor Hook resides in Brooklyn and has for many years lectured at the New School for Social Research in addition to his regular teaching duties at New York University...
...That we may be mistaken in our inference is granted, but since we will be much more frequently mistaken in denying the inference than in affirming it, the inference is legitimate...
...True, replies Bentham...
...We shall know better how to answer these questions if we can answer two prior ones: Is there a legitimate presumption that an individual who invokes the privilege against self-incrimination has something to conceal...
...To all questions like "Do you know anything about the gun...
...In referring to the fact that previous explanations of the desirability of the privilege as part of our basic law were not wholly satisfactory...
...Professor Chafee makes the startling claim that "Nothing else in the Constitution prevents Government officials and policemen from extorting confessions from American citizens by torture and other kinds of physical brutality...
...AMENDMENT V No person shall he held to answer for a capital or other infamous crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger...
...And since some of the opinions which have extended its meaning have been 5-to-4 decisions, it may very well be only one man who will fix its meaning in a given period...
...It does not unequivocally deplore the epidemic resort to the Fifth Amendment by those who are questioned about past and present membership in a conspiratorial movement...
...Any statement he makes to arresting officers he can repudiate in court...
...If there had been no Communist activities at Cornell or at Harvard, it is extremely unlikely, although not absolutely impossible, that the famous twins Would have inVoiced the privilege or that they would have had valid legal grounds if they did...
...it will be invoked by others when and if the Communist challenge to the free society recedes...
...But there is not only cruelty to the defendant to be considered but cruelly to the victim and to a whole class of possible future victims, Dean Griswold assumes that even if a person charged with a crime were actually guilty, it would be cruel to require him to reply to relevant questions the answers to which would lend to incriminate him, even in the absence of torture or intimidation...
...The first reason was already considered by Bentham...
...Although obviously impressed by Bentham's criticism of the privilege as involving the sacrifice of truth and justice on the altar of sentimentalism, Wigmore in his classic Treatise on Evidence concluded that, on the whole, the retention of the privilege would do less harm than its abolition...
...Refusal to testify to a relevant question before an appropriately authorized tribunal may incur a sentence of contempt unless the ground given is that one's answer would tend to be self-incriminating...
...Natural or reasonable inference in law as in life is guided not by pure logic or abstract mathematical possibilities but by reliable generalizations concerning human beings, their psychology and customary behavior...
...The reader is wooed to make an emotional transfer to actual cases, although no evidence is offered that any actual case coincides with the hypothetical ones...
...It is conduct in the nature of an admission...
...Common sense recognizes that evidence against a man acquires a greater force when it is not denied, particularly when a man is in a position to deny or refute the evidence...
...It is evidence against him...
...Unless there existed some grounds for regarding a man as legally guilty, it would be morally monstrous to bring a charge against him, indict and jail him, and compel him to undergo the ordeal and disgrace of a trial...
...Today, many laws prevent the use of torture...
...Or his motives for violating a just law may be loyalty to high if not supreme moral values, as in some instances of mercy killing...
...What the defendant fails to say sometimes counts as evidence in law...
...Whatever else this modest contribution adds to the subject...
...On many occasions, it has reflected political bias and not the informed and intelligent concern for freedom and justice which are the chief commitments one should bring to the subject...
...If Professor Chafee cannot see that Smith's answer establishes some presumption of his guilty involvement, irrespective of whether the inference is given weight as legal evidence admissible subsequently in court, then in the interest of truth and justice one can only hope that he will never serve on a grand jury...
...It is perfectly possible, therefore, to continue to hold that the burden of proof always rests with the prosecutor or plaintiff and still allow the drawing of adverse inferences from the refusal of the defendant to testify on grounds of selfincrimination...
...Refusal to testify himself or to call available witnesses in his own behalf under such circumstances warrants inferences unfavorable to the respondent...
...The question which concerns us at the moment is whether or not there is a justification in common sense and scientific inference for a derogatory conclusion concerning the person who invokes the privilege against self-incrimination...
...Why is there a privilege against answering relevant questions on the ground that a truthful answer would tend to be self-incriminating...
...We hold, however, that whether the answers be affirmative or negative they cannot be reached by logic alone but by psychology and by knowledge of the relevant social and political facts...
...Liberals (or conservatives) may disagree with each other about the nature and justification of the privilege against self-incrimination...
...He normally does not refuse to answer, and if he does refuse to answer he normally does not refuse to answer on the ground that a truthful answer would tend to incriminate him but on some other ground...
...Or that it is an aid to establishing the truth and doing justice...
...so that at bottom all this sentimentality resolves itself into neither more nor less than a predilection, a confirmed and most extensive predilection for bad evidence...
...Because of its enormous influence not only on the lay public but on recent legal decisions, I have directed many of my criticisms against Dean Ernest Griswold's book, The Fifth Amendment Today...
...Common sense answers: "Yes...
...Justice Clark's obiter dicta in the Slochower case, discussed later...
...Dean Griswold is absolved even from making any inquiry, for no matter what the results of such an inquiry he knows in advance that they cannot affect the original postulation of innocence...
...He is then asked all sorts of questions about actions in which some Communists have engaged, the very thought of which would make decent men blanch...
...Free men who do not wish to live in a state of anarchy must recognize authorities in law...
...Not only is a witness in any case privileged to invoke the Fifth Amendment in the event that a truthful answer would or might furnish "a link in the chain of evidence" required to prosecute him...
...And even when we have fairly determined its weight, it may not be legally admissible because of traditional rules of evidence...
...nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law...
...In any case, it is not likely that in the future we would leave him alone with a cat and a refrigerator...
...Dean Griswold recognizes that there is something curiously unsatisfactory in the character of the justifications previously offered in behalf of the privilege against self-incrimination...
...they are their own authorities on the moral issues and principles which, in the last analysis, should govern law...
...Our question, then, is: Is it selfevidently right to absolve a defendant or witness from answering a relevant question by a legally authorized body on the ground that a truthful answer would tend to be self-incriminating...
...which is a procedural rule—is "a symbol of our moral striving...
...I shall try to show that its invocation establishes a presumption of guilt or unfitness with respect to the issue in question which is relevant to inferences made in a non-legal or moral context...
...159...
...It is very odd that those who properly warn us against the quest for absolute security and certainty should suddenly invoke the logical commonplace that no strict equivalence or relation of entailment can be drawn between a fact and the empirical evidence for it...
...Supreme Court could possibly understand the meaning and scope of the provision which states: "No person shall be compelled in any criminal case to be a witness against himself...
...Every arrest would be arbitrary...
...Or Stalin...
...If this be true, it is apparently not a good preventive...
...Despite the reiteration of those who should know better, it is simply false to assert that the privilege against self-incrimination is today the only thing which stands between us and the reimposition of torture of witnesses and defendants...
...In strict logic—and, fortunately, the law is not bound by strict logic—this would give the witness the right to invoke the privilege with reference to any question including his name and address...
...Whose common sense...
...The fact that torture was once used to wring a confession from a man about his guilt seems sufficient to Dean Griswold to disapprove of requiring the defendant to answer questions today, even if he is safeguarded not only from torture but by watchful counsel and judge from bullying and intimidation...
...the reader may inquire...
...The second reason is that the privilege constitutes a protection for the innocent...
...Motive, opportunity and bad character are established...
...and in this scale of weights a refusal anchored to the admission that a truthful answer would tend to be self-incriminating is the heaviest obstacle of all to belief in his innocence...
...Before doing so, it is necessary to examine another observation of Dean Griswold...
...It is this inference which is relevant to the purposes of the inquiry...
...The first is that the overwhelming majority of those who have invoked the self-incriminatory provision of the Fifth Amendment have done so in answer to questions concerning their involvement in the Communist movement...
...Dean Griswold offers two main reasons, and one peripheral reason almost by way of an aside, in justification of the privilege...
...The situation is somewhat different where questions of moral guilt or moral innocence or blamelessness are involved...
...Assume that X, charged with the worst crime imaginable, is innocent by hypothesis...
...For in that case what in the world would he be doing in the courtroom...
...A gently put question to a witness concerning the whereabouts of a document needed to do justice in a case is ruled out because of the agony it might cause him to tell the truth: hut, armed with a search warrant, we can violently break into his home in the dead of night and seize the document by force...
...not only in civil cases but also in criminal cases, in which silence or any reluctance to face a situation with candor—e.g., flight, interference with witnesses, signs pointing to consciousness of guilt—gives rise to a prima facie adverse inference...
...Dean Griswold quotes Justice Field about "the essential and inherent cruelty of compelling a man to expose his own guilt...
...if I understand Dean Griswold, he would deny it...
...We shall continue the discussion of these psychological questions in the second article...
...Sidney Hook is Chairman of the Graduate Department of Philosophy at New York University...
...To say that the burden of proof rests with prosecutor or plaintiff does not mean that he cannot use information and admission in the testimony of the defendant...
...This principle of law has long been established and constantly applied...
...to adapt Erskine's well known phrase, the moral obligation to judge intelligently...
...Finally, if it were true, as Professor Chafee claims, that the privilege against self-incrimination is the only constitutional provision which prevents American citizens from being physically tortured or subjected to infamous punishments in order to extort confessions from them, then we should expect witnesses who for one or another reason have waived the privilege against selfincrimination to be the favored victims of the grossest police brutality...
...Still, the derogatory inferences about them would be mistaken, for by Dean Griswold's hypothesis although they might be undiscriminating to the point of stupidity in their idealism they are absolutely innocent of the activities about which they have been questioned, and in the second case even of membership in the Communist party...
...Further, even if it were retained to reinforce bulwarks against illegal practices of arresting authorities, that would have no bearing upon the wisdom or justice, or lack of it, of permitting the invocation of the privilege to be cited explicitly by counsel in pleading before bench or jury as relevant evidence in the case...
...his outright and persistent refusal to answer counts more heavily against him than his mere initial silence...
...How stands it, then, with the assertion that a valid reason for the privilege against self-incrimination is that it is a good shield for the innocent as well as a shelter for the guilty...
...Certainly, but far less often than Dean Griswold, would be the common-sense retort...
...What, then—should we abandon all the rules of evidence because they give us only a probability, only a conclusion beyond reasonable doubt...
...It constitutes a presumption of greater or lesser strength, depending upon attendant circumstances, but nonetheless some presumption of guilt...
...If a witness answers a question without fear of incriminating himself in a certain field—say, as to whether he ever joined the Communist party many years ago—he cannot therefore invoke the privilege with respect to whether he joined recently because his answer to the first qustion opened up the field of inquiry...
...Justice . . . would not perish if the accused were subject to a duty to respond to orderly inquiry...
...And in our own time Mr...
...Few questions of constitutional law in recent years have aroused so much interest, so much passionate interest, as the nature, justification and implications of the privilege against self-incrimination expressed in the Fifth Amendment...
...And this seems to suggest that if it is a sound principle that "a man is innocent until he has been proved guilty, it is a sound principle that a man enjoy the privilege of not giving testimony that would tend to incriminate him...
...The second reason is referred to by Wigmore and is far from conclusive until we know to what extent the innocent need it and to what extent the guilty profit by it...
...torture was also used in the past to wring an accusation From a man against others...
...Whoever permits himself to consider the relevant clause of thet Fifth Amendment only in relation to the phenomena of Communist conspiracy and/or cultural vigilantism is not likely to reach sound conclusions on the subject...
...All that Dean Griswold has established is that there is no strictly logical contradiction between being innocent of membership in the Communist party and involvement in its activities, and invoking the privilege against self-incrimination, just as there is no strictly logical contradiction between being innocent and a state of affairs in which, by every principle of evidence, direct and circumstantial, the verdict of guilty is warranted...
...To see what is wrong with Dean Griswold's logical procedure, let us examine another case...
...Experience has shown that those who, no matter in what cause, are foes of intelligence are the foes of freedom, too...
...From the point of view of scholarship and judicious analysis, the latter seems to me to present far and away the best treatment of the subject.* The position defended here expresses a common-sense truth which can be overlooked only by "a trained incapacity," to use Veblen's phrase, to see the obvious in a search for the historically recondite...
...With respect to all of them, he invokes the privilege...
...The accent must fall on the word "proved" to prevent this from being a tautology...
...Were we to do so, our whole system of law would collapse...
...The phrase "due process" begs for interpretation...
...After all...
...He adduces no other basic reasons...
...Notice that Anglo-American law does not recognize an unqualified right to be silent...
...too, hypothesizes the case of Smith questioned before a grand jury about the murder of Jones, committed by means of a pistol found near Jones's body...
...Nor does the maxim "a man is innocent until he has been proved guilty" mean even in law that "a man should be regarded as innocent until proved guilty...
...Section 348 expressly provides that witnesses cannot be excused from truthfully testifying except in special cases indicated in Sections 350-352...
...not "conclusive presumption...
...All these questions must be distinguished...
Vol. 39 • October 1956 • No. 40
