SPRINGFIELD, Mass., Feb. 5-Law School Dean Erwin N. Griswold upheld the legality of the use of the Fifth Amendment by witnesses before Congressional investigation committees, in a speech to the members of the Massachusetts bar Association here tonight. He also voiced his disapproval of what he called Congressional "subcommittees of one"
Griswold attacked the legal doctrine known as "waiver of the privilege," whereby a witness sacrifices his right to protection under the Amendment by answering certain questions.
"I would like to venture the suggestion that the privilege against self-in-crimination is one of the great landmarks in man's struggle to make himself civilized," Griswold declared, speaking of the Amendment in general terms.
"If a man has done wrong, he should be punished. But the evidence against him should be produced and evaluated by a proper court in a fair trial Neither torture nor an oath nor the threat of punishment such as imprisonment for contempt should be used to compel him to provide the evidence to accuse or to convict himself."
Hits One-Man Committees
Turning to the question of congressional investigating commitees, Griswold concluded his speech by questioning the propriety of "one-man" investigating groups. "A committee in the common acceptance of the term," he said, "is a group of persons, usually appointed to represent various points of view. Its actions reflect collective judgement taken after consideration and deliberation. In this light, I ask a question: Should these broad investigative powers ever be held by a single person, even though he is formally clothed with the title of a subcommittee?
"The more I thing about this, the more it seems to me an unsound practice. There is nothing about the nature of membership in the Senate or the house of representatives which should give each member a general commission to go through the length and breadth of the land, far from his own state or district, far from the seat of the general government, even on formal delegation to him from his House or one of its committees. Committees I am willing to accept. Subcommittees of one give me pause."
Disscussing the ex-Communist teacher who invokes the Fifth amendment, Griswold said, "Putting aside the question of his wisdom in doing this, can there be any doubt that the claim (of the privilege) is legally proper? Past membership in the Communist Party is not a crime in itself; but admitting such membership may well be a link in a chain of proof of a criminal charge against him... thus. an answer to the question will delicately incriminate him, that is, provide evidence which could be used in a prosecution against him."
Discussinlg the doctrine of waiver of privilege, Griswold pointed out that it was unfortunate in such cases because "witnesses who have legitimate fears of prosecution, but who might be willing to cooperate as far as they could, are induced (if not actually compelled) to refuse to answer any questions at all.
"This doctrine of waiver is, I believe, the true explanation of the refusal of some witnesses to answer such questions as Have you over taught Communist doctrine in your classroom? ... These refusals have been deeply disturbing to the public." Although the witness might never have indoctrinated students, he would be afraid to answer the question, since this would constitute a waiver of the privilege.
Grisworld went on to point out the possibility of moral justification of the man who refused to testify about his associates even after he had relinquished the protection of the Fifth Amendment for himself, assuming that the witness considered his associates innocent of any criminal acts