Extending the Fifth

THE SUPREME COURT

Many a local, state and federal employee is faced with dismissal if he refuses to testify in an investigation that concerns the performance of his job. But what of the Fifth Amendment guarantee against involuntary selfincrimination? Would it not be violated if the testimony were used in a criminal prosecution against the employee? Last week the Supreme Court said yes.

Five New Jersey policemen had been convicted of fixing traffic tickets, partly on the basis of their own testimony. But, said the court, their statements "were infected by the coercion inherent" in the threat of being fired. Therefore, "confessions obtained under threat of removal from office" are inadmissible in criminal trials.

Having gone that far, the court then proceeded to go another step farther. In a related decision, it held that Brooklyn Lawyer Samuel Spevack could not be disbarred for having exercised his right to be silent in an ambulance-chasing investigation. Did all this mean that public employees under investigation could henceforth keep quiet without risking their jobs? Not quite. Though he was part of the one-vote majority in both cases, Justice Abe Fortas took pains to point out in a concurring Spevack opinion that a lawyer is not an employee of the state and therefore has no responsibilities to it other than that of fulfilling licensing requirements. "I would distinguish," he wrote, "between a lawyer's right to remain silent and that of a public employee who is asked questions specifically, directly, and narrowly relating to the performance of his official duties."

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