29 Stan. L. Rev. 621 (1976-1977)
Of Babies and Bathwater

handle is hein.journals/stflr29 and id is 641 raw text is: VI. AFTERWORD
Of Babies and
Bathwater
John Kaplan*
Reading over the various contributions to this Symposium on Nebraska
Press Association v. Stuart,1 I was struck by how historical and personal
experiences color our views of legal and constitutional issues. Of course, we
do not need the Symposium to tell us that. We could look, for example, to
the history of the privilege against self-incrimination, and our inquiry
would reveal just how directly the establishment of that constitutional
right grew out of the peculiarities of English history under the Tudors and
the Stuarts.2 The focus might have been different. The means most
resented in eliciting unfavorable evidence during those times might have
been spies, informers and agents provocateur rather than the compulsory
oath. And quite different language might have been placed in the Magna
Carta to be pressed into service as a battle cry for a later generation. We
then might not have had the constitutional privilege at all, but rather
might have had rigid rules on the employment of spies and informers. In
that case, of course, modern courts would be struggling with issues of the
extent to which an accused can be expected to cooperate in his own
prosecution. 3
The relevance of all this is first that most of the contributors' views on
the fair trial/free press controversy, as Professor Franklin notes in his
Foreword, are strongly colored by their experiences and their perceptions
of history. Moreover, although I think that certain matters receive in-
sufficient emphasis in the preceding Comments, I do not share Professor
Franklin's conviction that the solution to the controversy must await more
systematic empirical data. On the contrary, my view is that, with proper
emphases, the fair trial/free press issue is a relatively easy one and this view
is at least partially dependent both on my personal experience as a trial
lawyer-which we will come to later--and on what I perceive as one of the
* A.B. '95, LL.B. 1954, Harvard University. Jackson Eli Reynolds Professor of Law,
Stanford University.
1. 96 S. Ct. 2791 (1976).
2. See generally L. LEvY, ORIGINS OF THE FIFTH AMENDMENT (1963).
3. See Damaska, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A
Comparative Study, 121 U. PA. L. REV. 507 (1973).

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