Use of the Fifth

The U.S. Supreme Court last week dealt with a familiar constitutional issue: the Fifth Amendment. Before the court was the case of New York City Attorney Max Halperin, convicted in 1955 of tax-fixing conspiracy* and attempting to corrupt witnesses before a grand jury. Before his indictment Halperin had declined, under the Fifth, to testify against himself before a grand jury. Because the trial judge permitted this use of the Fifth to be cited against him at his trial, the Supreme Court, on a relatively clear point of law, ordered a new trial.

Beyond the Law? But in the court's decision a flock of pundits and commentators thought they found backing for their long-argued opinion that the use of the Fifth Amendment carries with it no public stigma, social, economic or otherwise. The Supreme Court, wrote New York Timesman James Reston, had spoken out "emphatically'' against the "popular tendency" of assuming that a witness "must be guilty of some wrongdoing if he invokes the Fifth Amendment." Thus it was claimed the court had rebutted President Eisenhower's recent commonsensical remark that "if a man has to go to the Fifth Amendment, there must be something he doesn't want to tell." By the same reasoning, A.F.L.-C.I.O. President George Meany could be held to be wrong in concluding that Teamster Dave Beck's use of the Fifth Amendment was reason enough for booting him off the A.F.L.-C.I.O. executive council.

Some of the Supreme Court's language gave color to the idea that the court was reaching beyond a rule of law in an attempt to set a pattern of social behavior. The majority opinion, written by Justice John Marshall Harlan, favorably quoted Harvard Law Dean Erwin Griswold, a leading advocate of the anything-goes school of Fifth Amendment pleading. And a concurring opinion by Justice Hugo Black (with Chief Justice Earl Warren and Justices William Douglas and William J. Brennan) argued that the use of the Fifth Amendment should neither "discredit" nor "convict" any person.

Higher than Jail? If the Supreme Court was in fact trying to tell the U.S. public how it should react toward Fifth Amendment pleaders, then the court had overstepped its legal province to become a social arbiter. While generally approving the decision, Reston's own Times felt bound to point out editorially: "A banker who invokes the Fifth Amendment when charged with embezzlement will scarcely retain the confidence of his depositors. Labor organizations need not continue to support a labor leader who invokes the Fifth Amendment or any other amendment to avoid accounting for union funds."

That being very much the case, a good many U.S. citizens will probably go right along with the point made by Sidney Hook, chairman of philosophy at New York University, in his recently published Common Sense and the Fifth Amendment (TIME, May 27): "Anybody may keep out of jail by invoking the privilege against selfincrimination. But there are many posts in which we may legitimately require standards of conduct higher than those sufficient to keep out of a jail."

*Along with Influence Peddler Henry ("The Dutchman") Grunewald and Internal Revenue Official Daniel Bolich. On the tax-fixing count, the Supreme Court ordered new trials for Grunewald, Bolich and Halperin because of questions arising about the statute of limitations.

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