CHAPTER XXII.

PRIVILEGE AS TO SELF-CRIMINATING TESTIMONY.

§ 261. In General; and Herein of the Maxim "nemo tenetur seipsum accusare."

§ 262. In what Cases the Privilege may be claimed.

§ 263. When it may not be.

§ 264. At what Stage of the Trial, and how it may be claimed.

§ 265. The Privilege personal to the Witness.

§ 266.

§ 267.

Shall Court or Witness determine as to Tendency to criminate. Effect of Refusal to answer; Comments by Court or Counsel. § 268. Effect of Pardon, Statute of Limitations, or Act protecting the Witness. § 269. Waiver of the Privilege.

§ 261. In General; and Herein of the Maxim "Nemo tenetur seipsum accusare."- Liberally translated, this maxim, which is one of the oldest of the common law, means that any person, whether a party or stranger to the litigation, either in a civil suit or criminal prosecution, may, if he sees fit, refuse to answer any question put to him as a witness, either on direct or cross-examination, the answer to which, if true, will render or tend to render him punishable for crime, or disgrace him, or render him infamous. The soundness of the principle introduced into the common law by this maxim has seldom been questioned. It has been incorporated among the guaranties of personal liberty and security in all the constitutions both of England and America, and has received the sanction of the most eminent jurists of both countries. Notwithstanding this, of late years, at least one writer of ability and profound thought has attacked this principle with great vigor, denying its beneficent working under the present state of society; while another, also a jurist of eminence and

1 "It is believed that the maxim originally meant that no one should be compelled, by torture, to criminate himself. It was applicable to a time when suspected persons were put to the rack for the purpose of extorting confessions from them, and for refusing to plead to an indictment. The

prisoner was not allowed to produce witnesses to prove his innocence; and when he was baited, bullied and browbeaten, both by the king's counsel and the judge, without the privilege of having the assistance of counsel to cross-examine the king's witnesses, or to argue the merits of his defence to

unquestioned ability has defended this maxim with equal earnestness, if with less vigorous language.1

The rule derived from this maxim is ordinarily expressed in the books as follows: "Where it reasonably appears that the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal charge, the witness is not bound to answer the question. If the fact to which he is interrogated forms but a link in the chain of testimony which would convict him, he is protected without being required to explain how he might be criminated by the answer, and if it is one of a series of questions, the answers to all of which would establish his criminality, he cannot be compelled to answer that or any of the series, and the court is bound to instruct him whether his answer would tend to criminate or expose him.' 2 He may refuse to

the jury, certainly, in such a state of the law, a maxim which allowed him to keep his mouth shut, was a humane maxim, and was justly prized. But such a maxim has no place in an enlightened and humane system of jurisprudence. We have outgrown it. The reasons which brought it into existence have passed away. It remains little more than a rogue's maxim. If a gang of thieves and counterfeiters were to meet together for the purpose of framing a code of laws for their own protection, this would be the first section of their code. The just view of the matter is that the purpose of all inquiry in courts of justice is to elicit the truth, and that no privilege of not telling the truth ought to be accorded to him who, in nearly all cases, is best acquainted with the real facts of the case. An accused person ought not to be compelled by any compulsory process to testify; but the prosecution ought to be allowed to call upon him to do so, and if he refuse, the jury ought to be allowed to consider his refusal as bearing upon the probabilities of his guilt. Moreover, if he voluntarily take the witness stand in his own behalf, under modern statutes allowing him to do so, the state ought to have the privilege of cross-examining him on the

sum.

Neither can he be required to give testimony tending in that direction, or to disclose a single link in the chain of proof against him. This and kindred maxims, having for their object security to life, liberty and property, are so inwrought into the texture and fabric of the common law, as to cause it to breathe the spirit of justice and to become the exponent of an enlightened civilization. This principle is grafted into our federal and state constitutions, and fortified by a long and uniform course of judicial decisions. It has its foundation in natural justice, and is analogous to the right of self-defence." Chief Justice Wade, of Montana, in 2 Cr. L. Mag. 313.

2 Lea v. Henderson, 1 Coldw. (Tenn.) 146; Short v. State, 4 Harr. (Del.) 568; Marshall v. Riley, 7 Ga. 367; Richman v. State, 2 Greene (Iowa) 532; Robinson v. Neal, 5 T. B. Mon. (Ky.) 212; Rutherford v. Com., 2 Metc. (Ky.) 387; State v. Marshall, 36 Mo. 400; Coburn v. Odell, 10 Fost. (N. H.) 540; Janvrin v. Scammon, 9 Id. 280; Bank of Salina

answer a question put to him on the direct examination, and which would not in itself tend to criminate, if the questions which might be rightfully put, on cross-examination, to test the truth of such answer, might form a link in a chain of evidence that would criminate him. So, also, he cannot be compelled to answer as to any one act, the constant repetition of which would amount to a statute offence.2

§ 262. In what Cases the Privilege may be claimed. The witness may claim his privilege, where the object of questions put to him is to implicate him in the compounding of a felony, and thereby to discredit him; or to show that the witness had been accused of stealing, or had been found in possession of stolen goods.* He is not bound to answer as to how he testified on a former trial, relative to the matter in question, if he objects to the inquiry;5 and an officer to whose care a jury had been committed, cannot be compelled to testify to the fact of the jury's separating after a cause was committed to them and before they had agreed upon their verdict. In

v. Henry, 2 Den. (N. Y.) 155; United States v. Moses, 1 Cranch C. Ct. 170; Same v. Lynn, 2 Id. 309; Sanderson's Case, 3 Id. 638; Exp. Lindo, 1 Id. 445; United States v. Strother, 3 Id. 432; Short v. State, 4 Harr. (Del.) 568; Fries v. Brugler, 7 Hals. (N. J.) 79; Stewart v. Turner, 3 Edw. (N. Y.) 458; People v. Mather, 4 Wend. (N. Y.) 229; Poole v. Perritt, 1 Spears (S. C.) 128; Chamberlin v. Wilson, 12 Vt. 491; Cook v. Corn, 1 Overt. (Tenn.) 340; State v. Edwards, 2 Nott & M. (S. C.) 13. And see Southard v. Rexford, 6 Cow. (N. Y.) 254; Pickard v. Collins, 23 Barb. (N. Y.) 444; Pleasant v. State, 15 Ark. 624; Higden v. Heard, 14 Ga. 255; Fisher v. Ronalds, 16 Eng. L. & Eq. 417. A refusal to answer, though it may effect the credit of the witness, is not ground for any injurious inference against the party calling him. Phealing v. Kenderdine, 20 Pa. St. 354. See also Sir J. Friend's Case, 10 How. St. Tr. 1090; Lord Macclesfield's Case, 16 Id. 1149; R. v. Lord G. Gordon, 2 Doug. 593; Title v. Grevet, 2 Ld. Raym. 1008; R. v. Hardy, 24 How. St. Tr. 720; Trial of De Beren

ger and others, by Gurney, p. 195; Cates v. Hardacre, 3 Taunt. 424; Parkhurst v. Lowten, 2 Swanst. Ch. 216; R. v. Douglas, Car. & M. 193, 195. As to the rule in the ecclesiastical courts, see Swift v. Swift, 4 Hagg. 154; Schutes v. Hodgson, 1 Add. 105, 110; in the courts of bankruptcy, Bracey's Case, Comb. 390; Ex parte Kirby, 1 Mont. & Mac. 212; Ex parte Cossens, Buck. 540.

1 Printz v. Cheeney, 11 Iowa, 469. 2 French v. Venneman, 14 Ind. 282.

8 Pleasant v. State, 15 Ark. 624. Thus a defendant in a bill of discovery may decline answering such alle gations of the bill as may have a tendency to subject him to a criminal prosecution. Hayes v. Caldwell, 10 Ill. 33.

an action brought to recover, or upon a reference ordered to ascertain, the damages sustained by plaintiff, by the use by defendant of plaintiff's trade-mark, defendant cannot be compelled to answer questions showing or tending to show that he has sold articles manufactured by himself, with a label thereon imitating, resembling, or purporting to be the label of plaintiff, which act would be an offence within the statute.1 Where a father sues for the seduction of his daughter, the issue involves the character for chastity of the daughter; but she cannot be interrogated as to acts of unchastity with others, as this would tend to criminate herself.2 So, a female witness on a trial for felony cannot be asked if, while she lived with A, she was not accused of stealing or taking things not her own; and whether, when she left there, she was not followed, and the things taken from her. And in an action to try title to an office, a witness cannot be compelled to testify whether he voted, when the evidence would tend to criminate him; but in case of his refusal to answer, another witness may be permitted to testify that the first had told him how he voted, and that he confessed himself to be an alien.4

Where a witness has testified that any judgment in the case would be for his benefit, he is privileged from answering on cross-examination a question as to whether he had gone through bankruptcy without mention of this claim. And where, in bankruptcy proceedings, it was in proof that the bankrupt had recently lost money in a gambling-house kept by B and M at a certain house, it was held that B and M were privileged from answering whether they had resided therein. For the same reason, a witness cannot be compelled to testify to his retaining more than lawful interest out of the amount of a security discounted by him, being indictable in such case, for receiving usury contrary to the statute;7 and the same premise holds good as to a witness who has been a party to a champertous agreement.8 So, also, where a railway

1 Byass. Smith, 4 Bosw. (N. Y.) 679; Byass v. Sullivan, 21 How. (N. Y.) Pr. 50. 2 Reed

(Tenn.) 580.

Re Graham, 8 Ben. (U. S.) 419. 7 Bank of Salina v. Henry, 2 Den. (N. Y.) 155; Henry v. Bank of Salina,

v. Williams, 5 Sneed 3 Id. 593; Curtis v. Knox, 2 Id. 341;

8 Howell v. Commonwealth, 5

Gratt. (Va.) 664.

4 State v. Hopkins, 23 Wis. 309.

5 Taylor v. MeIrvin, 94 Ill. 488.

conductor was sued on a charge of collecting money from the passengers and not accounting to the company therefor, he was not required to answer whether he had passed persons free in the cars, or whether he had sold tickets below the regular prices.1

Where a witness who is testifying with regard to a conversation claims and is allowed his privilege as to what he said himself, on the ground that its disclosure would tend to incriminate him, the whole conversation in which the witness participated should be excluded.2

Again, it is erroneous, on a murder trial to compel the defendant to furnish evidence against himself, by exhibiting his amputated leg to the jury; and on a trial for stealing a horse, a witness who states that he is possessed of the signs and tokens by which horse-thieves are known and recognized by each other, cannot be compelled to disclose said signs and tokens. So, also, a former proprietor of a mercantile agency will be excused from answering as to communications made by defendant as a correspondent of the agency to the witness, on the ground that the answer might form a link to convict the witness of libel.5

The same rule of law which excuses a witness from answering questions which may tend to convict him of a crime or misdemeanor, excuses him also from producing books or papers, the contents of which may be used against him, and tend to the same result; but it must be shown that the books in question would have such a tendency.6

§ 263. In what Cases the Privilege may not be claimed. — It has been held that a witness cannot refuse to answer, because his answer might assist in pointing out to the prosecuting

1 Eaton v. Farmer, 46 N. H. 200. In Fisher v. Ronalds (16 Eng. L. & Eq. 417), a witness called to support a plea that the consideration for a bill was money lost at play, stated that he was present when the money was alleged to have been lost in his own house, but saw no gaming. He was then asked, "Was there a roulette table in the room?" The judge told him that his answer might tend to subject him to a prosecution under the 8 and 9 Vict., c. 109, § 2, for keeping a common gaming-house, and the

witness declined to answer. It was held that he was not compellable to answer, as the answer might have had that tendency, and that the judge did right in cautioning him.

2 Pinkard v. State, 30 Ga. 757.

8 Blackwell v. State, 67 Ga. 76; s. c. 44 Am. Rep. 717; 3 Cr. L. Mag. 393.

4 State v. Wilson, 8 Iowa, 407. 5 Matter of Tappan, 9 How. (N. Y.) Pr. 394.

6 Byass v. Sullivan, 21 How. (N. Y.) Pr. 50.