Caudill, Durward W.

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University of Kentucky

Kentucky Law JournalVolume 49 | Issue 4 Article 111961Constitutional Law--Plea of Fifth AmendmentBefore House SubcommitteeDurward W. CaudillUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Constitutional Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationCaudill, Durward W. (1961) "Constitutional Law--Plea of Fifth Amendment Before House Subcommittee," Kentucky Law Journal: Vol.49 : Iss. 4 , Article 11.Available at: https://uknowledge.uky.edu/klj/vol49/iss4/11REcENT CASESCONSTITTIONAL LAw-PLEA OF Fi= Am ENNT BFvoiux HOUSESuncomn=irrnn-Mrs. Intille, Mrs. Atkinson and Mr. Deacon had beenteachers in the Philadelphia Public School System for six, ten andtwenty-four years respectively. They were called before the Un-American Activities Committee of the House of Representatives inconnection with an investigation of Communist activities in thePhiladelphia school system. All three claimed the privilege againstself-incrimination contained in the fifth amendment. Within threedays after their appearance each was rated "incompetent" by hisadministrative supervisor and suspended, and dismissal was recom-mended to the school board. A hearing was conducted for each bythe board on the charge of incompetency; neither Mrs. Atkinson norMrs. Intille testified. Mrs. Intille offered evidence through counselof her good reputation, but this was rejected by the board becausethe charge was based solely upon her appearance before the Com-mittee. Mr. Deacon appeared and testified that he had previouslybeen associated with the Communist Party, but that he had beendropped in 1945 and had not been in contact with the CommunistParty since that time, that he had taken the Pennsylvania LoyaltyOath' in 1952, and that he had no affection or sympathy for the partyat the time of the hearing. After being discharged by the board, theteachers appealed to the Supreme Court of Pennsylvania.2 Held:Reversed. Such a dismissal is an attempt at avoiding the Pennsyl-vania Loyalty Act3 which provides that a discharge for disloyaltymust be proved by a fair preponderance of evidence at a properhearing, and is a denial of due process under the fourteenth amend-ment. Board of Pub. Edue. v. Intille, 401 Pa. 1, 163 A.2d 420 (1960),cert. denied, 81 Sup. Ct. 273 (1960).Under the law in Pennsylvania at the time these teachers weredischarged there existed two possible avenues for dismissal. Underthe Public School Code,4 a teacher could have been dismissed ongrounds of "immorality, incompetency, cruelty, persistent negligence,mental derangement, or persistent and wilful violations of the schoollaws of the Commonwealth." (Formerly the Code had included inthis section as grounds for dismissal, "advocation of or participatingin un-American or subversive activities," but this was repealedspecifically in 1951.5 ) The second avenue for dismissal could have1 As required by Pa. Stat. Ann. tit. 65 § 214 (1951).2Appeal from Common Pleas Court of Philadelphia County, sustainingthe action by the Superintendent of Public Instruction who dismissed the indi-vidual appeals of each teacher from the ruling of the Board of Education.8 Pa. Stat. Ann. tit. 65 §§ 211-225 (1951).4 Pa. Stat. Ann. tit. 24 § 11-1122 (1949).5 Pa. Stat. Ann. tit. 65 §§211-225 (1951).1961]KENTUCKY LAW JoIuNALbeen pursuant to the Pennsylvania Loyalty Act, which provided fora dismissal of a disloyal or subversive person as determined by a fairpreponderance of the evidence at a proper hearing.0Clearly, the school board sought to use the remaining provisionsof the Public School Code to accomplish dismissal for "advocationof or participating in un-American or subversive doctrines" by dis-missing the teachers on grounds of incompetency, regardless of therepeal of the provision formerly contained in the act. The result ofthe court's decision thwarted this attempt and was based on theanswers to two underlying questions, i.e., whether the privilege isavailable to a witness testifying before a House subcommittee; andwhether inferences of guilt may be drawn from a refusal to testify.In The Fifth Amendment Today1 Dean Griswold points out thathistorians can trace the origin of this privilege back to the 12th cen-tury. By the latter half of the 17th century, we find many occasionswhen this privilege was recognized by the English courts; and it hassince been continually recognized. Thus the privilege came to thiscontinent as a part of the legal heritage of our early settlers, and itis not surprising that it was included in the proposals made by Con-gress which became the fifth amendment.8 The clause reads: "Noperson . . . shall be compelled in any criminal case to be a witnessagainst himself. . . ."9 Instead of being limited to criminal cases,however, it has been extended to other situations, including Con-gressional investigations.' 0 Cushman, in Civil Liberties in the UnitedStates," indicates that "it extends to any official inquiry in which testi-mony under oath may be compelled, such as a coroner's inquest,a grand jury proceeding, or a legislative committee hearing, in whicha person is asked questions which might incriminate him."'2This appears to be in keeping with the spirit of the amendment.It is in the committee hearing that the privilege is frequently neededthe most, because of the unique nature of an investigation. Griswoldpoints out the precarious position of the accused in such a hearing:"answer truly and you have given evidence leading to your con-viction for a violation of a federal law; answer falsely and you willbe convicted of perjury; refuse to answer and you will be found6 Id. § 217.7 Griswold, The Fifth Amendment Today (1955).8 Id. at 2-7 for a more complete historical development of the privilege againstself-incrimination.9 U.S. Const. amend. V.3OSee e.g., Quinn v. United States, 349 U.S. 155 (1955).11 Cushman, Civil Liberties in the United States (1956).12 Id. at 142-143.[Vol. 49,RECENT CASESguilty of criminal contempt and punished by fine and imprison-ment." 13 He adds:Ordinarily when the privilege ... is exercised, it is in a criminaltrial. There a specific charge has been made, and the prosecutionhas by evidence established a prima facie case of guilt.... Undersuch circumstances there is much more than the mere claim ofthe privilege on which to rest an inference of guilt.In investigations, however, there are no carefully formulatedcharges. Evidence to support such charges has not been introducedand made known to the witness before he is called upon to answer.He has no opportunity... to make explanations which might have amaterial bearing on the whole situation. In the setting of an in-vestigation, therefore, the basis for the inference from a claim ofprivilege against self-incrimination is much less than it is whenthe privilege is exercised in an ordinary criminal trial.14The above statement touches on both points under discussion-that the privilege is important in investigations before a legislativebody, and that the basis for influence of guilt to be drawn from aclaim of the privilege is weaker than it would be in criminal cases.However, despite the strong statements of the Supreme Court thata "sinister meaning" 3 should not be drawn from the plea, the ques-tion is usually asked, "Why should anyone take advantage of theprivilege when he has nothing to hide?"This question runs through Justice Mussmanno's dissent in theprincipal case. He compares with questions regarding Communistaffiliations the following questions: "Do you sell narcotics to schoolchildren? . ..Are you the person who burned down the EpochalHigh School?... A year ago you said that your wife died of naturalcauses, but we now have evidence that she was killed criminally.Did you kill her? .. .Suppose a school physician had been askedif he was infected with a malignant communicable disease."16 Ques-tions dealing with Communist affiliations involve an infinite numberof shades of gray, whereas in non-political areas there may be onlyblack or white. In the opinion of Griswold, "we should give carefulattention in all cases to the nature of the question which is askedand which the witness refuses to answer.... Here again the problemis one of degree. There is no clear and sharply demarcated line. Thequestion whether a bank teller stole funds entrusted to him is onesort of question. But the closer the question gets to the area of opin-Griswold, The Fifth Amendment Today 21 (1955), quoting from Aiuppav. United States, 201 F.2d 287, 300 (6th Gir. 1952).14 Griswold, op. cit. .supra note 13 at 21-22.i5 Slochower v. Board of Educ. 350 U.S. 551, 557 (1956).16401 Pa. 1, -, 163 A.2d 420, 443 (1960).KENTucKY LAw JoURNAL[ion and political belief, the less significant... is the refusal to answerquestions."17In an attempt to determine why people plead the fifth amend-ment, Professor Daniel Pollitt sent questionnaires to 120 witnesseswho had availed themselves of the privilege. He categorized thereplies received as follows: (1) A belief that the question infringedon the witness' freedom of speech, association, or conscience; (2)A fear that answering a particular question would "waive" the rightto refuse to answer questions concerning the identity of others;(3) A fear of perjury indictment if questions were answered in thenegative; (4) A desire to protect the integrity of the fifth amend-ment or to support the position of others who have relied upon it;(5) A belief that the fifth amendment is the only safe way to refuseto co-operate with the committee; (6) A belief that the questionwas not pertinent to the committee's business; (7) A fear that an-swering a particular question would waive the right to plead theamendment when asked other questions about his own activities;(8) A fear that an answer would cause public humiliation, economichardship, or social ostracism to the witness; (9) Miscellaneous, e.g.the fifth amendment as a grant of the right to be confronted with wit-nesses; the right to silence, retained by the people under the tenthamendment and the due process clause of the fifth amendment.'8The Supreme Court has never had to decide squarely whetheror not an innocent man may validly plead self-incrimination. In1955, however, Chief Justice Warren, quoting from Twining v.New Jersey [211 U.S. 782 (1908)] stated that the privilege againstself-incrimination is "a protection to the innocent though a shelterto the guilty," and urged that it must be liberally construed. 10It is clear that in many cases the possibility of incrimination mightarise from a man's testimony even though he is innocent. Even if itwere unlawful for one to invoke the fifth amendment on the groundthat he wishes to avoid public embarrassment and ridicule, it wouldbe difficult to determine that these were the real reasons for the plea.At most, however, the offender would be guilty of contempt, andnot the offense alleged. To allow the court or an investigating bodyto draw inferences of guilt from a refusal to testify would be toallow the development of a doctrine in constitutional law similarto that of res ipsa loquitur in tort law, providing a prima facie case17 Griswold, The Fifth Amendment Today 58 (1955).18 Pollitt, "The Fifth Amendment Plea Before Congressional CommitteeInvestigating Subversion; Motives and Justifiable Presumptions-A Survey of 120Witnesses," 106 U. Pa. L. Rev. 1117, 1128-1182 (1958).19 Cushman, Civil Liberties in the United States 142 (1956).[Vol. 49,REcENT CASESfrom the refusal to answer where the evidence against the accusedhad failed.There were cases touching these points prior to Intille. Slochowerv. Board of Educ.20 involved a teacher who refused to testify beforea House subcommittee, and was discharged pursuant to section 303of the New York City Charter, which provided that "whenever anemployee of the City utilizes the privilege . . . to avoid answeringa question relating to his official conduct, his term or tenure of officeor employment shall terminate. . . ." The Supreme Court held thatthis charter was invalid because it contained a built-in inferenceof guilt derived from the plea of the fifth amendment.However, in Nelson v. County of Los Angeles,21 the Court uphelda similar statute. That statute imposed a duty to answer upon anypublic employee appearing before any investigating agency and pre-scribed that one who refused was guilty of insubordination and couldbe dismissed. The Court distinguished this statute from the one inSlochower on the basis that the latter did not contain built-in inferenceof guilt as a result of the plea. This is a somewhat tenuous distinc-tion, since by phrasing the statute to avoid the built-in inferenceof guilt the legislature could vest in the employing agency the powerto dismiss an employee for the sole reason that he invoked theprivilege.In Bielan v. Board of Pub. EduC., 2 2 a teacher was dischargedfor refusing to answer questions of his administrative supervisor.The Court upheld this dismissal. The distinction between thisand the other cases is less troublesome, since the rating of in-competency and the dismissal were based on the relationship be-tween the accused and his administrative supervisor, rather than hisrelationship with an agency of the United States.The result of this chain of decisions, therefore, is that an ad-ministrative board may discharge a public employee for refusingto answer the questions of his administrative supervisor or of alegislative body where a statute puts an affirmative duty upon him totestify and contains no built-in inference of guilt. A board may not,however, dismiss an employee for not answering the questions of alegislative body where the witness is required to testify by a statutewhich contains a built-in inference of guilt, or where there is noapplicable statute.2 3Durward W. Caudill20 350 U.S. 551 (1956).21362 U.S. 1 (1959).22357 U.S. 399 (1958).23 Three allied cases have been argued before the Supreme Court, but(Footnote continued on next page)

Constitutional Law--Plea of Fifth Amendment Before House Subcommittee

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Constitutional Law--Plea of Fifth Amendment Before House Subcommittee

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