Cohen v. Hurley, 366 U.S. 117 (1961)

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.

The privilege against self-incrimination contained in the Fifth Amendment has an honorable history, and should not be downgraded as it is today. Levi Lincoln, Attorney General, objected in the hearing of Marbury v. Madison, 1 Cranch 137, 144, to answering certain questions on the ground that the answers might tend to criminate him.{1} See Warren, The Supreme Court in United States History (1937), Vol. I, p. 237. The Court, then headed by Chief Justice Marshall, respected the privilege.{2} Neither he nor any Justice even intimated that it was improper for a lawyer to invoke his constitutional rights. They knew that the Fifth Amendment was designed to protect the innocent as well as the guilty. What the Court did that day reflected the attitude expressed by the Court in 1956 in Slochower v. Board of Education, 350 U.S. 551, 557-558, when we said,

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. . . . The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.

The lawyer in this case is in the same need of that protection as was the Attorney General in Marbury v. Madison and the professor in the Slochower case.

The American philosophy of the Fifth Amendment was dynamically stated by President Andrew Jackson, who replied as follows to a House Committee investigating the spoils system:

[Y]ou request myself and the heads of the departments to become our own accusers, and to furnish the evidence to convict ourselves.

H.R.Rep.No.194, 24th Cong., 2d Sess., p. 31.

President Grant took long absences from Washington, D.C., for recreational purposes. A House resolution asked Grant to list all his executive acts since his election which had been "performed at a distance from the seat of government established by law," together with an explanation of the necessity "for such performance." Grant declined, stating that, if the information was wanted for purposes of impeachment,

. . . it is asked in derogation of an inherent natural right, recognized in this country by a constitutional guarantee which protects every citizen, the President as well as the humblest in the land, from being made a witness against himself.

4 Cong.Rec., Pt. 3, 44th Cong., 1st Sess., p. 2999; H.Jour., 44th Cong., 1st Sess., p. 917.

A faithful account of the Fifth Amendment was given by Simon H. Rifkind, formerly a federal judge in the Southern District of New York who served with distinction from 1941 to 1950. He said in an address on May 3, 1954:{3}

Far and wide, currency has been given to what I regard as the mischievous doctrine, the unconstitutional and historically false doctrine, that the plea of the Fifth Amendment is an admission of guilt, an act of subversion, a badge of disloyalty.

I confess that, when I hear the words "Fifth Amendment Communist" spoken, I experience a sense of revulsion. In that phrase, I detect a denial of seven centuries of civilizing growth in our law, a repudiation of that high regard for human dignity which is the proud hallmark of our law. That phrase makes a mockery of a practice of every court in our land -- a practice which is so well accepted that we take it for granted: has any of you ever seen a prosecutor call a defendant to the witness stand? Of course not; you are shocked, I hope at the suggestion. A defendant takes the stand only of his own free will. Nor do we speak of "Fifth Amendment burglars," "Fifth Amendment traffic violators," or "Fifth Amendment antitrust law violators." Nor, for that matter, would I speak of "Fifth and Sixth Amendment Senators." But I do seem to recall that, when the actions of a Senator recently came under investigation, he hastened to insure that he would have the right to confront and cross-examine has accusers. He demanded that a statement of the charges be made available to him, and he insisted that he be allowed to compel the attendance of witnesses in his own behalf.

This is not the time to go into the hoary history of the Fifth Amendment, but this much is clear: the privilege to remain silent was regarded by our ancestors as the inalienable right of a free man. To compel a man to accuse himself was regarded as a cruelty beneath the tolerance of civilized people, and it simply is not true as a matter of law that only the guilty are privileged to plead the Fifth Amendment. The innocent, too, have frequent occasion to seek its beneficent protection.

There is no exception in the Fifth Amendment for lawyers, any more than there is for professors, Presidents, or other office holders.

I believe that the States are obligated by the Due Process Clause of the Fourteenth Amendment to accord the full reach of the privilege to a person who invokes it. See Adamson v. California, 332 U.S. 46, 68 (dissenting opinion); Scott v. California, 364 U.S. 471 (dissenting opinion) -- a position which MR. JUSTICE BRENNAN today strengthens and reaffirms. In the disbarment proceedings, petitioner relied not only on the state constitution, but on the Due Process Clause of the Fourteenth Amendment, contending that it forbade the State’s making his silence the basis for his disbarment. I agree with that view. Moreover, apart from the Fifth Amendment, I do not think that a State may require self-immolation as a condition of retaining the license of an attorney. When a State uses petitioner’s silence to brand him as one who has not fulfilled his "inherent duty and obligation . . . as a member of the legal profession," it adopts a procedure that does not meet the requirements of due process. Taking away a man’s right to practice law is imposing a penalty as severe as a criminal sanction, perhaps more so. The State should carry the burden of proving guilt. The short-cut sanctioned today allows proof of guilt to be "less than negligible." Grunewald v. United States, 353 U.S. 391, 424.

1. As reported in The Aurora for February 15, 1803, Levi Lincoln stated to the Court

[t]hat, if the court should, upon the questions being submitted in writing, determine that he was bound to answer them, another difficulty would suggest itself upon the principles of evidence; he would suppose the case to assume its most serious form if, in the course of his official duty, these commissions should have come into his hands, and that he might either by error or by intention have done wrong, it would not be expected that he should give evidence to criminate himself. This was an extreme case, and he used only to impress upon the court the nature of the principle in the strongest terms.

2. The Court, as reported in 1 Cranch at 144, said that the Attorney General was not obliged "to state anything which would criminate himself."

3. Rifkind, Reflections on Civil Liberties (American Jewish Committee), pp. 12-13.