Your rights are on trial; Avoiding self-incrimination

The following tape recorded program is distributed by the National Association of educational broadcasters. Well this was in October 1952 were about to do the whole thing in about 10 days that shows up in college. That was the actual voice of Dr. Harry sly collared the petitioner in our Supreme Court case today. A case in which your rights are on trial. Listen now to the most controversy over constitutional rights. The fifth. Amendment. Today. The 12th program in this series Your rights are on trial. This program is produced by the University of Minnesota radio station under a grant from the Educational Television and Radio Center in operation with the National Association of educational broadcasters. And the University of Minnesota Law School.

On today's program the most controversial constitutional right you will hear a Supreme Court petitioner Perry and his attorney from London. And two outstanding legal authorities. Determined Williams and pain will present opposing points of view. On the fifth amendment today. But first here is one of the consultant commentators for your rights are a professor of law at Columbia University. Mr. Paulson. Our case today concerns an ideal and an individual the ideal a portion of the Fifth Amendment of the Bill of Rights which reads nor shall any person be compelled in any criminal case to be a witness against himself. This is known as our constitutional right to avoid self-incrimination. This is the ideal in question. The individual Dr. Harry SLOC are a professor of German and

literature at Brooklyn College. Dr. slack honor had taught in this position for twenty seven years. Harry's Law car was simply a teacher doing his job teaching a course in German literature at Brooklyn College. One Friday in October 1952 when a casual interruption started him on the way to being a Supreme Court test case of the basic constitutional ideal to which I referred earlier. Thomas Monde is trying to show unity and morality politics and history. And my fear is that there is an inescapable relationship between moral content and aesthetic forms that our Yes but the class is meeting and I like to see you outside. I'm in the middle of a lecture I think I'm in but i government matter. Excuse me please.

Well whatever your business is this wasn't the most opportune moment you'd want as much time as you could get. This is Friday and on what are you talking about. This is a subpoena Mr. Slike How are you to appear before the Senate Internal Security Subcommittee on Monday. There are several versions of what happened after this. According to Time magazine Brooklyn college's Professor Harry Sakari was in a smart alec witness before the Senate internal security subcommittee when its lockout appeared before the subcommittee. He was asked for example if he could identify any members of the Communist Party retorted SLOC our I am sure Joe Stalin is a member. Invoke the Fifth Amendment three times in refusing to say whether he had been a communist in 1940 and 1941. He was fired by Brooklyn College under the New York City Charter provision that requires

automatic dismissal for all city employees who plead the Fifth Amendment. So writes Time Magazine How would hear a schlock owner explain it himself as recorded in New York City. Here is the petitioner in our case today. Dr. Harry schlock are just after the semester began I got a subpoena for the morning that Friday afternoon the last told PM Monday. Well I appeared and answered every question that was asked me. I answered all questions including the question as to whether I was a member of the Communist Party. I balked at one question only. Well two questions but really one question and that was with regard to the years 1940 41 and I explained that to a satisfaction that I had very good reasons for not answering the question as to whether I was a member the Communist Party in those years and that

my futile answer did not imply guilt and that I wish I could tell him the reasons why I was not asking it but if I did give those reasons why then I couldn't invoke the Fifth Amendment was the whole point would be lost. And Senator Kerry isn't said he accepts my answer sincere and he grants me the right to use my constitutional privilege. I had no idea that because I stood by the Constitution that therefore I would lose my job. And when I got back to the college I was told this was the case. Harish locker did not believe he should lose his job for invoking a constitutional privilege. With Their from London as his attorney he took his case to the United States Supreme Court. Before we hear the Supreme Court's decision in this case and learn of Mr. Slack hours an attorney London's view of the High Court opinion. What about the ideal involved here. How did the privilege against self-incrimination come about.

Is it really essential. Are criminals and communists using the Fifth Amendment to avoid justice and to hamper law enforcement these vital and timely questions will be answered by our two guest authorities see Dickerman Williams and Telford Taylor. First as recorded in his office in New York City a former counsel for the Department of Commerce and author of legal journal articles on the Fifth Amendment. Mr. C. Dickerman Williams the Fifth Amendment developed in Great Britain in the latter part of the 17th century in rebellion against the torture used by the court of star chamber. The first part of the 17th century against religious heretics public opinion reached a definite conclusion as the century progressed. That limited questioning of suspects and accused people would. It was bound to lead to torture

and in order that suspects and accused people could cut off the questioning. And so the torture would not be used. They said that the suspect or anybody any witness could refuse to answer when they when he sent a question to which the answer would incriminate him that is would tend to show him guilty of a crime. Well Telford Taylor sees the history for the right against self-incrimination as Dickerman Williams. Their interpretation of this history differ as recorded in his law office in New York City. Here is chief counsel for the United States at the war crimes trial in Nuremberg. General in military intelligence and author of grand inquest Telford Taylor on the history of the Fifth Amendment the Fifth Amendment I take it the part of it you're referring to is the part which provides that nobody should be required to be a witness against himself in any criminal case. And that is a constitutional version of an old principle of law

which had been applied in criminal cases for oh hundred fifty years before the Constitution was adopted. It came into being because and I was timeless as no questions of politics and point of view. Were a very important part of life and verged into what we would now call security matters. At that time of course people were much more concerned about religious use than they are today and there was a great deal of calling people up on charges of heresy on this behavior various kinds of the church took cognizance of and they got into the habit of calling people and requiring them to answer any kind of question at all about their personal lives relating to their behavior in the home their religious behavior what they read all kinds of things like that. Well at the same time of course you had a growing tradition in England of personal freedom objections to Inquisition and search and seizure and it was because of the growing objection to this kind of inquisition into a person's very

personal thoughts and reading habits and family habits that people began to object to answering these questions. This privilege against self-incrimination was without much discussion or argument put into the bill of rights when it was adopted in 1791 because it had by then become a very familiar part of criminal. Schools in England than in the United States. While the history of the Fifth Amendment is important most of us are concerned with its application today. Are communists using the right not to bear witness against oneself to hamper security investigations. Should one who invokes the Fifth Amendment right of silence be viewed and treated as a communist. Mr Williams says yes Mr. Taylor says no. First as recorded especially for this program let us hear Attorney see Dickerman Williams. I think we all know that day. If we are in a suspicious or ambiguous situation and we have a good explanation for it we get it I can't imagine why a person wouldn't get

it and hence when a man is silent on a subject on which he's bound to have knowledge I can only think that whatever he would have to say would discredit him. I think if a man hasn't been a communist I know of no reason why I shouldn't say so. It's a no disgrace in asserting that you're not a communist and if a man isn't a Communist but there it has been suggested that it has been or there is some doubt about it or somebody asked him about it I can't imagine why he wouldn't say that he hasn't been a communist. And if we think the Communist Conspiracy is a dangerous one I think the public authorities are entitled to all the information that we have. We all know that the courts have many times sadly that silence gives rise to an adverse inference against the witness and I consequently don't think that anybody is disloyal to the founding fathers or to the Constitution if he concludes when a man is silent under the circumstances and invokes the Fifth Amendment that he has something to conceal which would discredit him if it were revealed.

That was Mr. C. Dickerman Williams. And now for the opposing point of view as recorded especially for your rights are on trial attorney Telford Taylor. If a person is asked whether or not they are have or ever have been a communist and they plead the Fifth Amendment it is not a legitimate conclusion at that point that they probably are communist. Now you want to know why and for that we have to go back to further to the reason for this privilege You bet. There's a lot of argument about whether this privilege is for the benefit of the innocent or for the benefit of the guilty. We continually see discussions about that at that point. Well to my mind it's it misses the point. The fact of the matter is that this privilege is for the benefit of the accused. Before you know whether he is innocent or guilty let's take the guarantee of a jury trial. We don't think of that as being for the protection of the innocent or the guilty. We think of that as a way of deciding whether a

person is innocent or guilty that is one of the techniques we use. Well just so with this privilege against self-incrimination it has been decided rightly or wrongly that a person's own testimony forced from him is not a wise way of determining whether he is guilty or innocent. It is therefore a mistake to think of the privilege as being for innocent or guilty it is for the accused it is part of a bunch of laws a bunch of principles that are used in determining guilt or innocence. You have heard our two guest authorities interpret in the place and meaning of the Fifth Amendment today. How does the highest court of our land interpret the constitutional guarantee against self-incrimination now. This right was called to the Supreme Court's attention recently in the slot car case a brief reminder in 1952 Professor Harris flock I refused to tell a congressional committee whether or not he had been a communist in 1941. Within two weeks after invoking his Fifth Amendment right

of silence Dr. slot car was separated from his position on the faculty of Brooklyn College according to a New York law. Harry took his case to the Supreme Court on April 9th 1956. The Supreme Court rendered its decision. Writing for the majority Justice Tom S. Clarke stated at the outset we must condemn the practice of imputing a sinister meaning to the exercise of a person's constitutional right under the Fifth Amendment the right of an accused person to refuse to testify which had been in England merely a rule of evidence was so important to our forefathers that they raised it to the dignity of a constitutional enactment. And it has been recognized as one of the most valuable prerogatives of the citizen the privilege against self incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or

a conclusive presumption of perjury. Our witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. No consideration is given in the New York statute to such factors as the subject matter of the questions remoteness of the period to which questions are directed. One justification for exercise of the privilege. The heavy hand of the New York statute follows alike on all who exercise their constitutional privilege. The full enjoyment of which every person is entitled to receive. This is not to say that SLOC hour has a constitutional right to be an associate professor of German at Brooklyn College. The state has broad powers in the selection and discharge of its employees but there has been no such inquiry here. We hold that the summary dismissal of Appellant violates due

process of law. This was the Supreme Court decision in this lock our case. It meant that Brooklyn College must reinstate Dr. Heriot's lock hour and pay him $30000 in back pay. It also means that the New York law that required automatic dismissal for all city employees who might plead the Fifth Amendment was unconstitutional. How was this Supreme Court decision view if you days after its announcement the chairman of the Senate internal security subcommittee Senator James O Eastland of Mississippi stated if this decision stands it may be impossible for states and their subdivisions to protect themselves from communist infiltration and influence. Once again the court Celestia states rights. How did the principals in today's case the Supreme Court decision if you days after the court's opinion the producer of your rights are on trial Mr. Philip

Gelb interviewed petitioner here a schlock hour and his attorney Ed from London and Mr London's New York office. First Mr Ed from London I think the most important. Result of the cases the eradicating the idea that there may be something wrong in the exercise of a constitutional right to meet a great danger of the action taken by the Board of Higher Education in discharging Dr slack out was that it. This same attitude might be taken in connection with any other civil right. For example if one could be discharged for exercising his right to refuse to incriminate himself perhaps he might also be discharged or punished for objecting to an unreasonable search and seizure of his home. He might be punished or discharged for invoking his right to a

trial by jury because it might just as easily be said with respect to those rights that an innocent person would have nothing to fear from the search of his home or a seizure of some of his property or that an innocent person would have nothing to fear from a trial without jury. I would say broadly that it was made quite clear that no state may punish any person for exercising any constitutional right I think that would naturally flow from this decision. Many teachers are already getting their jobs back and but I think more important is a change in the atmosphere feeling of courage a lessening of intimidation and many more voices which are now being raised and will and will continue to be raised during that. Really speaking in terms of a very precious American

heritage which the Supreme Court has upheld a nephew who believe in this particular case there was a major factor from which the case might have swung possibly the strongest point in our favor was the argument raised by the city of New York or rather the corporation counsel who represented the Board of Higher Education. The argument that one who exercises his Fifth Amendment right against self-incrimination must be either a perjurer O must be guilty of some crime which he wishes to conceal I think that the court was understandably shocked by that argument and incensed. Granting that avoiding perjury and covering up for possible guilt would not be the reason for invoking the Fifth Amendment today. Why would anyone involved the Fifth Amendment. I think that more than one of the investigating Senator stated that his definition of a communist included people who were sympathetic. I think it's important to

note at this point that once a question relating to incriminating matter is answered one may not then refuse to answer any other questions relating to the same matter. Assuming that the witness had not been a member of the Communist Party and answered No I am not and I was not a member of the Communist Party in 1941. He would then have been compelled to answer a subsequent questions about related matters as for example whether or not he was a member of the progressive citizens of America or whether he contributed to Russian war relief or whether he knew people and all of these other facts which for him might appear extraneous may have been used to convict one of some wrong which had never been committed. All you gentlemen care to comment on Senator Eastland comment that this case somehow or other as slash away states rights.

Well I should certainly say that the case holds that the state has no right to punish any employee of the state for exercising his federal constitutional right and I thank God that is the determination and the law of this land. Just like I read only as something it will sound anti-climactic that it doesn't slash state to rights its last to stay too long and that was the petitioner in our Supreme Court case today. Harry's Law car and his attorney F. from London as recorded in New York City. Does the decision in this case mean that the government no longer can obtain information essential to our national security. Are we no longer protected against communist infiltration. For an authoritative answer to this important issue once again here is legal authority Telford Taylor. Are we paying too high a price for the Fifth Amendment. Well I would say no.

And the next thing I'd like to Mark is that there are ways of preserving the Fifth Amendment and at the same time getting the information that is necessary for law enforcement. That way has been utilized in England from time to time ever since 300 years ago and that way is to pass a special statute which will give immunity to people who testify so the authorities can get the necessary information and the person will be protected against prosecution and therefore unable to plead the Fifth Amendment because after all the Fifth Amendment is a is a protection against subsequent criminal prosecution. And if you remove that risk then you can require the person to ask the questions. So in the field of national security subversion and disloyalty and so forth. If it is important enough in a particular case Congress can give the individual immunity and require him to answer questions in that event the person will not be able to plead privilege against

self-incrimination he will have to answer the questions or go to jail for contempt and the government will get the information. But when we come to the end of the whole field of individuals and their relationship to the government of course there I think the simplest thing to say is this that the whole idea of law as between the individual and the government is impossible under a totalitarian government. And that is my notion of what the law is in a democracy is some kind of a of a definite kind of principle by which the individual's relationship to the state is governed. That's what disappears under dictatorship. That is why anything like a Bill of Rights say nothing to the Fifth Amendment is unthinkable under dictatorship because basically the Bill of Rights is a regulation. And it. Limitation on the right of the state to pursue the individual too far.

That was Telford Taylor author of grand inquest a former general in military intelligence and chief counsel for the United States at the war criminal trials of world war 2. Mr C Dickerman Williams former counsel for the Department of Commerce earlier expressed disagreement with Mr Taylor on certain interpretations of the Fifth Amendment. Is there disagreement basic. How does Mr. Williams summarize his views of the constitutional privilege against self-incrimination. Once again as recorded in his law office in New York City Mr. C Dickerman Williams I believe in a privilege against self-incrimination because I think that quite apart from matters of communism and so on I think that the police. And I don't mean to run down the police because I when I was an assistant district attorney I knew a great many of them and I liked them very much. But I think the police are about to get out of hand perhaps out of a sense of virtue and righteous indignation if they think a man whom they believe to

be guilty is wrongly denying his guilt. There's a great temptation to use force and coercion to make him admit it and get rid of the case. And so that I think that we should I think that suspects should have protection against that temptation of the policeman. In other words I think a band was picked up by the police in title to say and certain in fact if you were my client I'd say don't say anything until until you've had a chance to talk it over with your lawyer at least. If it were under circumstances which indicated that he was suspected of. Something of course ordinarily I think the ordinary good citizen will cooperate fully with the police but if he thinks the police are getting high handed and browbeating him why that he should stop and wait for his lawyer to arrive. And I'm somewhat afraid that the political overtones are tending to discredit the Fifth Amendment because a lot of people seem to get the you know I've gotten the impression of the column the Fifth Amendment is something which has just been thought up to protect

communists. Of course that isn't true of the privilege against self incrimination came into being many years before anybody had ever heard of communists and served a very useful role and I think it can continue to do so and I think there's some danger that if it's given such extraordinary and artificial interpretations as some people seek to give it the whole thing will be so discredited that a public moment of indignation may may repeat it which might my way of thinking would be unfortunate. It is interesting to note that both Mr. Williams and Mr. Taylor are in agreement as to the importance of the Fifth Amendment right. Their disagreement comes in their view as to what the consequences of invoking the Fifth Amendment right might be. The controversy is a useful one for us it seems to me because it has forced us to rethink the essential purpose and meaning of the Fifth Amendment protection. And as people have rethought this question more and more of them have come to see the Fifth

Amendment as a great monument to human dignity. It is a way of recognizing that even the lowliest and most vicious of human beings an obvious criminal has enough of human dignity with respect to him that the whole society must respect his wishes. On the question of whether he should testify or not we convict persons not of their own mouths but out of object of evidence which our police officers search for seek and find. On the other side Mr Williams and persons who support his point of view feel that particularly we need to give something from the Fifth Amendment in order to gain something in the fight against communism. Such considerations may well lie behind the New York law which provided the basis for firing Dr. Harry's Law car. However the Supreme Court of the United States has said that this law goes too far in encroaching upon our Fifth Amendment freedoms.

You have just heard. The 12th program in this series Your rights are on trial. For use for the National Association of educational broadcasters under a grant from the Educational Television and Radio Center. My station would pay you a whim in cooperation with the University of Minnesota Law School. The consultants for this series are professors of law grad Paulson and Charles Allen right. Mr Paulson was the commentator on today's program. Your right to run trial is written edited and produced by Philip Gale. Join us again next week the same time for the final program in this series which asks Can we have both national security. And individual rights. Our most modern challenge in the vital area in which Bill of Rights on trial.

This is the end the EBD Radio Network.