SELF-INCRIMINATION

To the Editors of the CRIMSON:

The suggestion has been made to the writers of this letter that confusion has arisen in many minds about the use and the limitations of the privilege against self-incrimination contained in the Fifth Amendment,--"No persons...shall be compelled in any criminal case to be a witness against himself...." Current newspaper reports of the claim of this privilege or its State counterparts before grand juries. Congressional committees, and other agencies of government make the matter one of unusual interest.

The underlying principle to remember in considering the subject is the duty of the citizen to cooperate in government. He has no option to say, "I do not approve of this Grand Jury or that Congressional Committee; I dislike its members and its objectives; therefore I will not tell it what I know." He is neither wise nor legally justified in attempting political protest by standing silent when obligated to speak. The citizen is ordinarily required, when summoned, to give testimony to a court, legislative committee or other body vested with subpoena power, and if he refuses to do so he is punishable. Subpoena power has proved necessary to the conduct of government: it is the correlative of the guarantee to an accused in the Sixth Amendment that he shall "have compulsory process for obtaining witnesses in his favor."

A Privilege

To this general duty of the citizen the privilege against self-incrimination is an extraordinary exception. The federal constitution prohibits all federal officers from requiring anyone to give testimony tending to prove that he is guilty of a crime. Criticized adversely by some because it makes police work difficult this immunity is justified by others because it keeps government officers active in investigating the facts of offence, rather than relying on "grilling" suspects. Sir James F. Stephen, the noted English criminologist, made the classic explanation of the background of the rule, when he quoted with approval a remark about occasional violations of the immunity by Indian policemen: "It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence." In a discriminating examination of the arguments for and against the constitutional right, John H. Wigmore, the distinguished American legal writer, concludes: "For the sake, then, not of the guilty, but of the innocent accused, and of conservative and healthy principles of judicial conduct, the privilege should be preserved."

Whatever its theoretical merits and demerits, the privilege has often been upheld by the Supreme Court as part of our national Bill of Rights, and the same rule has been generally adopted in state constitutions. Article XII of the Massachusetts Declaration of Rights, part of the Commonwealth Constitution, provides, "No subject shall...be compelled to accuse or furnish evidence against himself."

There are several current misconceptions about the testimonial privilege to remain silent. The witness is not the ultimate judge of the tendency of an answer to incriminate him. He can be required, on pain of contempt punishment, to disclose enough to show a real possibility that an answer to the question will tend, rightly or wrongly, to convict him of a crime. Manifestly this is a delicate business. The witness must not be required to prove his guilt in demonstrating the incriminating character of the answer sought. A judge must decide when the witness has gone far enough to demonstrate his peril.

Mere embarrassment is not an excuse: the witness must be subjecting himself to some degree of danger of conviction of a criminal offense. There are refinements of this subject beyond the scope of this letter. For example, the immunity under the Fifth Amendment of a witness before a federal agency does not ordinarily extend to exoneration from compulsory self-incrimination of offenses under State law; but recently some lower federal courts have refused to find witnesses guilty of contempt of the "Kefauver committee" when they refused to answer questions tending to convict them of certain State crimes that committee was investigating. A sense of sportsmanship toward suspected associates is not an excuse: the Fifth Amendment grants no privilege to protect ones friends. If a man feels that he has a personal code compelling this reticence, he must pay for his scruple by standing the punishment society prescribes.

Are You a Communist?

Difficult questions arise when a witness is asked if he now is or ever has been a member of the Communist party. The Internal Security Act of 1950 provides "Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of...this section or of any other criminal statute." Whether this refers only to federal statutes or was intended to include state statutes as well is not clear, but the section tends to militate against immunity when the question is asked with reference to a federal offense. Certainly the fact that disclosure of present or past association with the Communist party will cause trouble for the witness with his church, his lodge, his union, his employer, or his university, does not excuse him from answering questions about it when subpoenaed before a competent body.

Yet because of special circumstances cases can arise where disclosure of communist association may have a tendency to incriminate. In December 1950 the Supreme Court of the United States upheld the privilege of a witness to refust to tell a federal grand jury whether she knew the names of the officers of the Communist Party of Colorado, whether she had ever been employed by that Party, whether she had custody of its books, and like questions. The Court said that her answers might have furnished links in a chain of proof on a charge of violating the Smith Act of 1940 which penalizes conspiracy to advocate the desirability of overthrowing the government by violence. The Massachusetts Supreme Judicial Court made a somewhat similar ruling in June, 1951.

However, a witness who testifies without protest to a part of his Communist connection may find that he has lost his privilege of silence, and must tell the rest or stand punishment for contempt. In 1948 another witness before a federal grand jury in Colorado testified that she had been Treasurer of the Communist Party of Denver until eight months previously, and that she had then turned over the membership lists and dues record of the Party to another. But she refused to tell to whom she had given them, saying, "I don't feel that I should subject a person or persons to the same thing that I'm going through." She persisted in her refusal, was sentenced to four months' imprisonment for contempt of court; and in April, 1951, the United States Supreme Court affirmed her conviction, saying that after her original testimony, the further answers presented no more than a mere imaginary possibility of increasing the danger of prosecution.

A privileged refusal to testify is not an admission of guilt for the purposes of criminal prosecution. Its effect on popular opinion is, of course, not within constitutional control. A refusal may mean only that the witness has innocently got into a situation where he is apparently though not actually guilty of a crime; but fairly or not, the fact that he feels it necessary to refuse information to a government agency on the ground that it will tend to incriminate him inevitably casts a shadow on his reputation.

Two final observations might be made.

Wisdom and Good Citizenship

First. It is not only a legal requirement but also a principle of wisdom and good citizenship for an individual called before a court, grand jury, or a legislative investigating committee to answer questions frankly and honestly. The constitutional privilege to keep silent is an exception to the legal obligation to testify; but even when the legal privilege is available, there are times when it is best not exercised.

Second. There may be an occasional person in a situation of special difficulty. He should remember that the privilege against self-incrimination is a complex and technical subject. If, feeling that he may be called as a witness, he attempts to decide for himself the legality or the wisdom of asserting a privilege to remain silent, he is as ill-advised as the layman in serious pain who doses himself with home remedies. Any prospective witness who is doubtful about the desirability of answering questions should feel that it is essential for him to obtain the professional advice of a lawyer, to whom he makes prompt and full disclosure of the facts. Zechariah Chafee, Jr.,   University Professor   Arthur E. Suthoriand   Professor of Law