The Individual and the Fifth Amendment

...To many minds, the tendency to regard the inference as conclusive is simply irresistible...

...The reason is that courts know that it is full of risks, and that admitting it, without the opportunity for cross-examination of the person quoted, is often unfair and leads to too many errors...

...In relying so heavily on the logical basis for an inference from a claim of privilege...

...These involve the extent to which, if any, in varying circumstances and in particular cases, the inference should be given weight and effect, in the administration of justice and in public and private affairs, in the light of our long experience and deep-seated (and...

...To me, the first of Professor Hook's articles is the most disappointing...

...This was not true of the cases in my experience...

...He says, putting words in my mouth, and then replying: "But common sense may be mistaken in these matters, retorts Dean Griswold...

...What will his chance be then...

...I have never argued to the contrary, nor do I know any basis for such an argument...

...The fourth partakes of both these qualities...

...It was in this sense that I said that the privilege against self-incrimination was related to the presumption of innocence...

...It is one of the things we do to protect people against the exercise of governmental power...

...On the other hand, in some investigations the safeguards may be much less, and the basis for an inference may be correspondingly reduced...

...Besides, even common sense can give effect to the special circumstances of particular cases...

...Professor Hook is careful to point out that the inference of fact from the claim of privilege is not conclusive...

...it has been experience...

...Because of this, it does not seem to me of any particular importance that an adverse inference from the claim of privilege may be justified in a considerable proportion of the cases...

...What, then, does this have to do with the claim of the privilege in Congressional investigations...

...During the war, he was a member of the Alien Enemy Hearing Board for Massachusetts...

...Professor Hook says in his third article that in "the overwhelming majority of cases before Congressional committees, a considerable amount of evidence has been introduced which tends to confirm the conclusion about Communist party membership...

...It still does not seem to me to be as simple as that...

...If some investigating committee should ask a witness whether he holds a certain religious belief, he might well refuse to answer...

...It is important, though, as it seems to me to be a clear illustration of Professor Hook's failure to appreciate some of the things which I had supposed to be at the very heart of our legal tradition and deeply rooted in our experience...

...One of the things we do to this end is to provide the privilege against self-incrimination...

...Dean Griswold, who has taught at Harvard Law School since 1934, assumed his present position in 1946...

...The Harvard Corporation made a thorough investigation in the cases of Professor Wendell Furry and others three years ago...

...If they are possible, they should be recognized when they occur and understood...

...Professor Hook seems to think of the administration of justice as a sort of branch of the theory of probabilities...

...Professor Hook's discussion is naturally that of the philosopher rather than the lawyer...

...Yet it is clear that the inference, on which Professor Hook so strongly relies, if taken here would be simply wrong...

...To this end, they have established strong safeguards for the protection of individuals against whom governmental power is brought to bear...

...Throughout his articles we find failure to make distinctions, failure to consider the facts of actual cases, and failure to recognize that "General propositions do not decide concrete cases...

...He has shown that ordinary logic ordinarily justifies an inference from a claim of privilege...

...Persons who think there is merit in the privilege are "ritualistic liberals...

...I thought I had done a great deal, and really probably enough, when I showed (not novel or original with me, of course, but frequently overlooked) that a person could legitimately claim the privilege although he was guilty of no offense, and that in some other cases people do claim the privilege, perhaps wrongly, when they have committed no offense...

...This privilege, then, is closely related to the presumption of innocence...

...It did not begin to change in this country until the adoption of a statute in Maine in 1864, and not in England until 1873...

...At the time of the Revolution, a defendant in a criminal case could not testify at all...

...On the basis of long experience, courts exclude many types of evidence which are logically relevant...

...To me justice need not be so completely blind...

...Stress on the fact that there is a logical basis for an inference from the claim of privilege pervades all of Professor Hook's articles...

...There is an important historical fact here that has been generally overlooked...

...For example, courts do not generally admit hearsay evidence, though logically it has probative value...

...Otherwise, says Professor Hook, there could not be any charges or arrests or indictments...

...Nevertheless, they are designed to produce facts, and we should be interested in getting the facts accurately—not just "inferences," but facts...

...This is shown, I think, by the phrase "Fifth Amendment Communist" which Professor Hook rightly condemns in one of his articles...

...Thus, a very large part of Professor Hook's treatment of the problem is devoted to a question which does not exist...

...When the question is asked in one of our courts, with all of the safeguards there provided to insure fair and deliberate consideration, there may be a substantial basis for an inference, though even here, as I have indicated, it is far from conclusive...

...I believe, fundamentally sound) tradition that the individual citizen is important...

...This also is heavily relied upon in the thoughtful article by C. Dickerman Williams to which Professor Hook refers...

...Common sense" is, to be sure, a popular sort of term...

...He tends to dismiss this rather easily by saying that I have talked only about "hypothetical" cases, which are thus obviously artificial and unreal...

...In his last article, Professor Hook says that it is "false" for me to base the privilege on the experience of the founding fathers...

...To this end, it is important, it seems to me, to have a keen appreciation of the fact that the inference which may be taken as a matter of logic from the claim of the privilege —that is, that the fact inferred is more likely true than not—is one which may, in some cases, be contrary to the actual facts...

...On the whole, it has seemed better in the past, in practically all parts of the English-speaking world, to give it no weight in court proceedings—that is, not to rely on the inference from the claim of privilege...

...He is now going straight, but is picked up by the police and charged again with pocket picking...

...A Reply to Sidney Hook The Individual and the Fifth Amendment By Erwin N. Griswold The privilege against self-incrimination is protected by the Federal Constitution, and by the law of every one of the 48 states, as well as by the law of Britain and other English-speaking countries...

...What more do you want...

...In criminal cases, the risks are so great that it is the almost universal rule of law that regardless of logical basis the inference cannot be taken at all...

...I am sure that Professor Hook would not deny that such cases are possible...

...All persons who were Communists, regardless of time and circumstances, are conspirators...

...either for or against himself...

...In all of these cases, it is perfectly clear that the inference which would be taken from the claim of privilege, the "common sense" conclusion, is simply wrong...

...As evidence of this concern, we have established many rules...

...Professor Hook feels, plainly enough, that that basis is slight...

...But it has proved, through long experience, to be a sound way to administer justice, a matter to which Professor Hook gives virtually no consideration at all...

...In the process, Professor Hook largely fails to talk about the points that are worth talking about...

...The questions really worth considering come after that...

...Therefore, the importance of the privilege against self-incrimination at the time of the Revolution was in investigations, in inquiries, and with respect to questioning of the defendant by the judge in criminal cases, such as had been made notorious by Judge Jeffries...

...To me...

...If you do, he will be subject to cross-examination, on which he will have to admit that he has twice before been convicted of picking pockets...

...indeed, be evidenced by Professor Hook's own assumption—indeed statement—that practically all of the people who have claimed the privilege over recent years are conspiratorial Communists with much of importance to conceal...

...Their cases, and many others, show that the privilege against self-incrimination has often been a factor in protecting people against injustice...

...It is wholly inadequate in such matters as these to say that one result is more likely than another, and so we will accept it...

...Professor Hook completely fails to recognize the fact, as I see it, that if any inference is allowed from the claim of privilege it is very likely, indeed, to be given conclusive effect in many minds—especially in unsophisticated minds, and in minds which are predisposed, for one reason or another, to reach that conclusion anyway...

...Well, he claimed the privilege, didn't he...

...Was there no Writs of Assistance case...

...Even in the case of the guilty, it has the important effect of requiring the prosecutor or investigator to prove his case from sources other than the defendant or the person being investigated...

...But to say that these events were not known to and did not play an important part in the experience of the founding fathers is a clear misconception of history...

...Professor Hook has simply failed to prove...

...He argues at great length—and with good temper, may I gladly say—a point as to which there is no dispute...

...It is always helpful to see problems from a different point of view...

...Since Professor Hook refers so frequently to my writings, I may perhaps be permitted to answer this point on a personal basis...

...2) What effect, if any, should (as a matter of wisdom, justice, policy or law) be given to such an inference, in court proceedings, in other official action such as investigations, or by private parties such as educational institutions and other employers...

...We do not stultify ourselves if we try to understand their situation...

...In undertaking such investigations, we were of course acting on an inference from the claim of privilege...

...and I find them an appropriate object of concern, too...

...This is the basis on which I have acted when called upon to act in this area...

...Above all, he never talks about the facts of individual cases...

...They may, for example, be frightened, or just stubborn...

...To take from his refusal the inference that he does hold that belief might well be unwarranted...

...I do suggest that an inference is something very different from a fact, and that the inference arising in some cases is actually erroneous...

...The second and third have much more in them that is helpful...

...I tried to develop some of these in one of my speeches to which Professor Hook makes no reference...

...the important and disappointing thing about Professor Hook's articles is that he has largely failed to recognize and to discuss the problems which are really serious in this area...

...I had supposed that it was a well-established and deeply-felt part of our legal and governmental tradition that we were intensely concerned with protecting the innocent, and with protecting the ordinary citizen from overreaching governmental power...

...Instead of jumping or...

...Because of this unfortunate rule, the witness who does have something to conceal may have to claim the privilege with respect to questions which are not of themselves incriminating...

...I pointed out that the nature of the tribunal can be of great importance on this matter...

...Suppose you were his lawyer...

...indeed, leaping to the conclusion that a person who claims the privilege is probably guilty of something, which seems to me to be the thrust of Professor Hook's articles, is it not important that the public, and especially thoughtful members of the public, should have a clear understanding of the fact that that conclusion may actually be unwarranted...

...Let me say it again: As is shown by the rule requiring proof in criminal cases beyond a reasonable doubt, we have deliberately introduced into our law many safeguards designed to protect innocent people, and to prevent governmental overreaching...

...Professor Hook constantly overlooks the actual facts of individual cases...

...It may well be that Jeffries is the source of our Constitutional provision as much as Lilburne is...

...Certainly, but far less often than Dean Griswold, would be the common-sense retort...

...It applies, too, beyond the law...

...As a matter of fact, my hypothetical cases were drawn from my experience...

...This is the important and difficult problem...

...As far as I know, no one has ever contended to the contrary...

...It applies not only to disbarment but to dismissing college teachers and firing industrial employes...

...The more closely the question gets into matters of politics or belief, the less basis there is, I think, for accepting such an inference...

...In the last four issues, we have published Common Sense and the Fifth Amendment by Sidney Hook, which look exception to the views expressed in Erwin N. Griswold's book, The Fifth Amendment Today, Now we present Dean Griswold's comments, and next week Professor Hook will conclude the discussion...

...We cannot do that if we approach all of the problems with sweeping generalizations...

...His approach is essentially analytical...

...It is clear, of course, that the presumption of innocence is simply another way of stating the rule of proof beyond a reasonable doubt in criminal cases...

...shouldn't we be able to come up with something better and more rational than "common sense" in the administration of justice...

...This, of course, is far too facile...

...Under this rule, many people whom we think to be guilty, and against whom there is strong evidence, are rightly acquitted, by our standards, because the proof is not such as to be beyond reasonable doubt...

...On the other hand, I said that I did not think that automatic disbarment, without investigation or hearing, was appropriate or justified...

...Though there is a logical basis for an inference, the risks of taking that inference into consideration are very great...

...But to rely only on "common sense" in the administration of justice would leave us not far removed from some of the People's Courts in other lands...

...The first of these questions is alluded to by Professor Hook in his first article but inadequately discussed...

...After all...

...The mere fact that there is a logical basis for such an inference does not mean either (1) that the fact inferred is actually true, or even (2) that the inference should be given any weight at all...

...After all...

...Of course, that is not required by logic, with which Professor Hook is primarily concerned...

...and I do not think that Professor Hook would have us change...

...The cases which really merit attention are those where there was no other evidence, and these Professor Hook does not discuss at all...

...After all, are not John Lilburne and William Bradford heroes of our law...

...This, it seems to me...

...Never before, though, have I felt so forcefully the truth of Oliver Wendell Holmes's well-known statement that "The life of the law has not been logic...

...Would you put him on the stand and have him testify honestly that he did not commit the offense with which he is now charged...

...He relies heavily on common sense, which, I suppose, is simply an evaluation of ordinary experience...

...Professor Hook is simply wrong when he says, in his third article, that I have asserted that resort to the privilege gives rise to no factual presumption...

...Statistically they are unimportant...

...He recognizes that there may be cases where the actual fact is not the same as the fact so inferred...

...Does the fact that such evidence did appear in some cases mean that all cases should be treated on that basis...

...That simply misses the point...

...There are at least two of these: (1) What is the extent or weight or probative value of such an inference, as a matter of fact...

...As this illustration shows, it is not enough to say that the claim of the privilege logically gives rise to an inference of fact...

...One of the best known of these is the rule requiring proof beyond a reasonable doubt in criminal cases...

...Professor Hook concludes his first article by saying that "regnant doctrine about the self-incrimination provision of the Fifth Amendment is based upon an egregious fallacy...

...If my efforts have stimulated Professor Hook to action, they may have been useful, even though I think that Professor Hook's approach is far too narrow and formalistic to lead to sound results...

...Were not Lilburne and Bradford and many others, and the Star Chamber, a vivid part of the tradition and thus of the experience of the founding fathers...

...It is not even verbally satisfying, and it has no substance at all...

...It sets up at great length an obviously untenable position, and thoroughly demolishes it...

...I think that those safeguards are important, even though they may be effective or needed in only 10 per cent, or only 1 per cent, of the cases...

...Were there no courts of admiralty...

...In the preface to my little book of speeches on the Fifth Amendment, to which Professor Hook frequently refers in his series, I said that my purpose was to contribute to the discussion of the difficult problems in this area...

...But the genius of our law does not lie in statistics...

...This was true both in England and America...

...One basis for such exclusion is that the evidence, though logically relevant, may be of doubtful validity, so that the dangers of being led into error through taking it into consideration are too great...

...Between 1929 and 1934, he was an attorney in the office of the U.S...

...To me, the administration of justice is something much more difficult and much more refined than mere common sense...

...The second is scarcely referred to in any of his articles...

...In the light of wisdom and long experience, we have felt it far better to go to this length to protect innocent persons, even though we know that some guilty ones escape...

...As Professor Hook points out, we also made investigations in the case of the two Law School students who claimed the privilege...

...and I participated as a member of a faculty committee...

...On the other hand, if you do not have him testify—which means that he claims the privilege against self-incrimination—the inference may be taken against him, though it should not be...

...When did many of the Puritans come to this continent, and why...

...He largely ignores experience...

...In speaking at the American Bar Association meeting in Philadelphia in August 1955...

...He generalizes easily: All persons who claim the privilege are, of course, guilty of something...

...Professor Hook makes virtually no references to history...

...these are not criminal trials...

...The rule with respect to the privilege against self-incrimination seems to me to be similar...

...Common sense shows that...

...Similarly, the nature of the question ashed may be important...

...This is really astounding...

...It is to the great credit, I think, of the men of the past who have formulated our law that they have worried about individual cases...

...I think that some of them were not...

...Professor Hook's position seems to be that there really are not very many such cases, so let us not worry too much about them...

...But we do not...

...I thought it was worthwhile to point this out...

...Where other persuasive evidence appeared (though one may well ask whether this evidence was subject to cross-examination), the claim of privilege may not be very important...

...The basic difficulty with the first article—and to an appreciable extent the same factor runs through all the rest—is that it magnificently and laboriously misses the point...

...In my Marquette University speech which Professor Hook cites in his first article, and in speeches before the Maine State Bar Association and the American Bar Association, I took pains to make it plain that a claim of privilege warranted and often required investigation by persons having responsibility for the person claiming the privilege...

...Whether there is really a sound basis for an inference from a refusal to answer a question can only be decided after a careful and thoughtful consideration of all the elements in the situation...

...Of course, we could have a better statistical record, a better record within the rules of probabilities, if we followed the "preponderance of the evidence" rule in criminal cases...

...He is the author of several books on law, taxation and trusts and a contributor to legal journals...

...There is also the problem of "waiver," to which Professor Hook refers...

...to the relation of a man to his friends and his community...

...Courts know from experience that there are a significant number of courses where the taking of such an inference will lead to serious injustice...

...That, of course, is all to the good...

...I said that if a lawyer claimed the privilege an investigation by the appropriate committee of his local bar association was warranted and might be required...

...Consider, for example, the plight of a man who has twice been convicted of picking pockets...

...This seems to me to be the basic and pervading defect of his discussion...

...It lies in the experience of actual human beings...

...Is it Professor Hook's position that a former thief who is now trying to go straight is unimportant...

...He has failed entirely to consider the varying facts and circumstances which may affect the weight which should be given to a claim of privilege...

...Solicitor General and a special assistant to the Attorney General...

...As I have indicated, I do not question the existence of such an inference as a matter of logic...

...It cannot be safely done on the basis of a grand generalization, which seems to me to be the essence of Professor Hook's position...

...It is also shown by the general public reaction in this area, as may...

...Most of Professor Hook's first article is devoted to a lengthy argument that there is a logical basis for an inference from a claim of privilege under the Fifth Amendment—just as there is from a refusal to answer a question on any ground, or even from merely standing silent while a charge or accusation is made...

...Professor Hook, in a portion of his article which seems to me to be merely word-play, says that there cannot be any real presumption of innocence, that a person obviously cannot be presumed innocent until he is proved guilty...

...Many of them probably were, and Professor Hook is rightly concerned about that...

...Here is one of the places where Professor Hook's series is most disappointing to me...

...I hope we never get to the place where we administer justice on a 60-40 basis...

...Such popularity, one might think, must have some basis...

...I am glad, nevertheless, that he has turned his mind to the problem...