Right of refusal to talk speaks volumes

July 29, 2002|By Michael Ollove | Michael Ollove,SUN STAFF

How would this conversation go over in your household:

You: "Junior, it looks like a Smart Bomb has taken out the front end of the Suburban you and your buddies took to Eight Legged Freaks last night. Anything you care to share about what happened?"

Junior: "Believe me, I really want to, Dad, but on the advice of counsel, I respectfully must decline to answer that question based on the protection afforded me under the Fifth Amendment."

FOR THE RECORD - A caption in Monday's Today section incorrectly identified former Tennessee Sen. Estes Kefauver in a photo of members of the 1950s U.S. Senate Crime Investigating Committee. The committee member should have been identified as former Sen. Herbert R. O'Conor of Maryland. Kefauver appeared elsewhere in the photograph. The Sun regrets the error.

No way, right? No way a parent is going to accept a no comment from that kid. Fact is, most of us expect - or harbor the hope anyway - that our kids will spill the beans on misbehavior before we find out on our own. We believe in confession, in fessing up. We admire the mensch, the stand-up guy. You did it, you own up to it, that's our creed.

And that's why we're so bothered during what is shaping up as the Year of the Fifth. After a long interval, people again seem to be flocking to Washington in order to invoke their right against self-incrimination. Every other week, we turn on our televisions to the spectacle of crisp white men in crisp white shirts somberly regretting their inability to tell congressmen why they can't explain how they misplaced hundreds of millions of dollars and spread misery to countless employees and stockholders while getting rich themselves.

Some manage to invoke the Fifth with admirable chutzpah, implying that keeping their mouths shut actually demonstrates moral fortitude rather than suggesting its opposite. So, for instance, Bernard Ebbers, WorldCom's former CEO, doing his best Nathan Hale impression, confides to a congressional committee, "I would like, more than you know, to answer the questions that you and your colleagues have about WorldCom."

But, alas, he says, he can't.

If only it were up to them. Often, these executives suggest that they want nothing more than to be able to clue us in on what went down. It's their lawyers who won't let them. They actually say that, as though we're too stupid to know on whose behalf the lawyers are working, as if we don't understand that the lawyers want them to shut up so they don't end up in prison.

It's easy to hate these - in commentator Daniel Schorr's phrase - "Fifth Amendment capitalists." It's easy to see them as self-centered, arrogant and cowardly, loyal to nothing but their own skins.

So, go ahead and hate them. But don't hate the Fifth.

We need it

Far from a cop-out or a corruption of our better nature, the Fifth Amendment demonstrates both our self-knowledge and our self-discipline. We have it because we know we need it; it represents our maturity, not our weakness. As Erwin Griswold, a one-time Harvard Law School dean, said, "[T]he privilege against self-incrimination is one of the great landmarks in man's struggle to make himself civilized." He made the comment in 1955, at the end of the McCarthy era, when great forces were marshaling themselves in favor of repealing the privilege.

Luckily, they failed.

Like many of our constitutional amendments, the Fifth is an outgrowth of the great suspicion with which the Founders regarded government. To them, government was something we needed protection from. We didn't want the government telling us what to believe, what we could say and who we could hang out with. We didn't want the government storming into our homes whenever it chose to do so. And, as the Fifth Amendment shows, we didn't want the government coercing confessions from us.

By the end of the 18th century, Western legal history was replete with examples of forced confession. From the Inquisition to the Star Chamber to the Salem witch trials, government and ecclesiastical investigators had long proven themselves adept at getting what they needed from the accused to make their cases. The abuses were so evident that in England, the value of confessions came to be viewed with widespread skepticism, enough so that English common law came to recognize the right against self-incrimination. The authors of the U.S. Constitution merely transplanted that protection here to prevent coerced confession and compulsory self-incrimination.

In our system of law, we make the government prove its case against the accused and do not allow it to, as Dan Moriarty, a professor of criminal law at Albany Law School, puts it, "conscript the defendant into the army that's opposing him."

"History has shown that if you let the government do that, they will be abusive. They will accuse everybody and make everyone accuse everybody else."

The right, of course, does benefit the guilty, perhaps more often than the innocent. "It is a right that protects mostly the guilty," says Albert Alshuler, a professor of law at the University of Chicago. "People want to say the opposite and conjure up instances where the innocent were protected. You shouldn't take the invocation of the Fifth as any kind of conclusive proof of guilt, but the fact is that mostly people take the Fifth when they have something to hide."

Perception

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