GRISWOLD SPEECH DISCUSSED

To the Editors of the CRIMSON:

It is frequently assumed that the right against self-incrimination belongs only to the guilty. Dean Griswold, in his recent address to the Massachusetts Bar Association, has declared against this assumption.

He argues in effect that since we cannot ask a guilty man to contribute evidence which will lead a judge to pronounce him guilty, a fortiori we cannot ask an innocent man to contribute evidence which will mislead a judge to pronounce him guilty. A man cannot be held to contribute to what he stands to suffer by. Both principles would seem to follow from the simple principle of moral respect, the same principle which makes it unallowable to ask a criminal to hang himself or order his own firing squad.

This is a convincing argument. But it would seem to establish a principle (the allowed evasion of questions which if answered might lead to error) by which a man could evade any question he pleases. For error is always possible, and the probability of error is so difficult to assess that the principle would be ineffective unless highly subjective estimations were allowed. Such a principle could actually make the person being examined the judge of the fitness of the court, hence of its authority. And this would seem dangerous to the implementation of justice. This consequence raises doubts concerning the correctness of the recommended interpretation of the principle to which the Fifth Amendment gives expression.

Since this is not a matter of a legal tradition (as in property law) nor of a constitutional arrangement which might be other than it is (as in the provisions for legislation) but of an a priori principle intrinsic to any free society, the clue to what the Amendment means will have to come from an understanding of what it must mean as a constitutional principle of a free society. Thus, following Dean Griswold, we must inquire concerning its moral basis, i.e., its place in the realization of freedom and its connection with the moral respect which is the foundation of the free society. It should be plain that a principle which undercuts the administration of justice cannot be argued on a moral basis.

In the free society a man can have no duty which is not consonant with the respect which is due him as a moral agent. We can demand only what we can demand morally. Thus we cannot ask a man to give his life, for such an obligation cannot be defined. But we can ask a man to risk his life. And we do in time of war. Similarly, we cannot ask a man to establish his own guilt. But we can ask that he risk trial. And we can ask an innocent man to risk judicial error.

We can go still farther: not only can we ask an innocent man to risk error, but we must ask him. For in no society can the institutions of justice and order be in principle suspect. We cannot allow, let alone underwrite, the questioning of the authority of any duly constituted agency by anyone within its jurisdiction. General MacArthur's notorious pronouncement that he owed allegiance to the Constitution rather than to the Commander-in-Chief was something no society could allow. Allegiance to the Constitution is allegiance to what it authorizes.

Liability to error is the lot of all human institutions. But this fact cannot be allowed to undercut their authority. In consequence every society provides systematic ways in which error can be corrected and injustice rectified without diminishing the authority of the agency at fault. In the truly liberal state these established procedures are effective, readily available, and constantly improved. There is nothing especially liberal about a state whose agencies are ineffective. Except in the manner prescribed by law, individual complaints against the competence of judgment and action authorized by law cannot be allowed as arguments against authority.

To protect individuals from mis-administration in the various agencies of government there are systems of checks and balances, provisions for appeal, review and redress, etc. The same end could not be brought about by making the authority of any agency conditional on the faith the citizen has in it. Similarly, the remedy for the miscarriage of justice is not a principle which would undercut the implementation of justice altogether in making the defendant the judge of the competence of the court. Rather, it is a revision of the procedures of trial and investigation in which miscarriages of justice occur, and the institution and improvements of methods of appeal, review, and redress. Witch trials and kangaroo courts are bad. So are the methods of some authorized forms of investigation. But no broader principle of immunity will make them better. They themselves must be eliminated or set right.

The best we can say, then, is that the Fifth Amendment establishes a principle defining explicitly the limits within which the law can make a demand on a guilty man consonant with his dignity as a free agent; and that our system of trials, investigations, provision for appeal and redress, etc. must be constantly revised to make justice more common and injustice more easily rectified. Robert E. Gahringer (Ph.D. 1953)