"There are several current misconceptions about the testimonial privilege to remain silent. The witness is not the ultimate judge of the tendency of an answer to incriminate him. He can be required, on pain of contempt punishment, to disclose enough to show a real possibility that an answer to the question will tend, rightly or wrongly, to convict him of a crime.

Embarrassment Not Excuse

"Mere embarrassment is not an excuse: the witness must be subjecting himself to some degree of danger of conviction of a criminal offense. There are refinements of this subject beyond the scope of this letter. For example, the immunity under the Fifth Amendment of a witness before a federal agency does not ordinarily extend to exoneration from compulsory self-incrimination of offenses under State law; but recently some lower federal courts have refused to find witnesses guilty of contempt of the 'Kefauver committee' when they refused to answer questions tending to convict them of certain State crimes that committee was investigating. A sense of sportsmanship toward suspected associates is not an excuse: the Fifth Amendment grants no privilege to protect one's friends. If a man feels that he has a persona code compelling this reticence, he must pay for his scrupple by standing the punishment society prescribe.

"Difficult questions arise when a witness is asked if he now is or ever has been a member of the Communist party. The Internal Security Act of 1950 provides 'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of...this section or of any other criminal statute.' Whether this refers only to federal statutes or was intended to include state statutes as well is not clear, but the section tends to militate against immunity when the question is asked with reference to a federal offense. Certainly the fact that disclosure of present or past association with the Communist party will cause trouble for the witness with his church, his lodge, his union, his employer, or his university, does not excuse him from answering questions about it when subpoenaed before a competent body....

"A privileged refusal to testify is not an admission of guilt for the purposes of criminal prosecution. Its effect on popular opinion is, of course, not within constitutional control. A refusal may mean only that the witness has innocently got into a situation where he is apparently though not actually guilty of a crime; but fairly or not, the fact that he feels it necessary to refuse information to a government agency on the ground that it will tend to incriminate him inevitably casts a shadow on his reputation.

"First. It is not only a legal requirement but also a principle of wisdom and good citizenship for an individual called before a court, grand jury, or a legislative investigating committee to answer questions frankly and honestly. The constitutional privilege to keep silent is an exception to the legal obligation to testify; but even when the legal privilege is available, there are times when it is best not exercised.

"Second. There may be an occasional person in a situation of special difficulty. He should remember that the privilege against self-incrimination is a complex and technical subject. If, feeling that he may be called as a witness, he attempts to decide for himself the legality or the wisdom of asserting a privilege to remain silent, he is as ill-advised as the layman in serious pain who doses himself with home remedies. Any prospective witness who is doubtful about the desirability of answering questions should feel that it is essential for him to obtain the professional advice of a lawyer, to whom he makes prompt and full disclosure of the facts."

Justification for Dismissal

There were universities like Rutgers which used the Chafee-Sutherland thesis to justify immediate dismissal. Harvard, in its dealings with professors who used the Constitutional privilege, seemed to agree in theory, but the Harvard Corporation adopted a policy of judging each case of its own qualifications, and it was nor until May 20 that it issued a statement on Associate Professor of Physics Wendell H. Furry who had first used the Amendment before Velde's committee on February 25.

"We deplore the use of the Fifth Amendment by a member of our faculty," wrote the Harvard Corporation. "In the first place we think full and candid testimony by all teachers would dis-

close that there is little Communist activity today in educational institutions. But more important, the use of the Fifth Amendment is in our view entirely inconsistent with the candor to be expected of one devoted to the pursuit of truth. It is no excuse that the primary purpose of its use is to protect one's friends, or to express one's feelings that Congressional committees are by-passing the Constitutional safeguards of due process of law, or to avert a danger of prosecution for perjury in case one's testimony should later be contradicted by the false testimony of others. Furthermore, since we are not conducting a criminal trial, we will not shut over eyes to the inference of guilt which the use of the Fifth Amendment creates as a matter of commonsense. Hence, the use of the Fifth Amendment by a member of our teaching staff within the critical field of his possible domination by the Communist Party, makes it necessary in our judgement for us to inquire into the full facts..."

Food For Sensation

For it is obvious, although all responsible groups have agreed that the investigations themselves have done more harm than good to American universities, that the use of the Fifth Amendment is food for sensational journalism, which damns an instructor's university as well as the man himself. In Furry's testimony, for an instance, the physics professor stated that he felt the committee had no right to inquire into his beliefs. Yet, he was willing to go into detail about his views against fascism. The tremendous concern with academic freedom as an abstract doctrine often caused men to tacitly implicate a university in their refusal to answer questions. The rationale of those who used the Fifth Amendment was best stated in a letter to the CRIMSON from New York lawyer Leonard B. Boudin on March 19. "...In refusing to cooperate with the Velde and Jenner committees, the witnesses are asserting their constitutional right to freedom of speech, belief, conscience and assembly. The Supreme Court has not consented to hear such First Amendment claims in recent cases involving congressional investigations. That is not a reason for failing to assert rights which the individual citizen believes that he possesses.

Technical View

"From a technical point of view, a witness who relies exclusively upon the First Amendment may not avoid a committee citation for contempt. Hence, so many witnesses in recent years have relied upon the Fifth Amendment to the United States Constitution, which states that persons may not be required to act as witnesses against themselves. It is particularly appropriate to assert the privilege here since it had its origins in the protection of political and religious dissidence in the Puritan period in England...