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9 Panel 1 (1931)

handle is hein.journals/panelmbu9 and id is 1 raw text is: To increase the eiffciency of the Grand Jury System ThE PANZL A Publication Devoted to the Exchange of Views of Public Ofcials and Citizens in the Effort to Prevent Crime and Secure the True Administration of Justice PUBLISHED BY THE ASSOCIATION OF GRAND JURORS OF NEW YORK COUNTY The contributions and letters in The Panel are either credited to their authors or signed with the names or initials of their writers and the Editor assumes no responsibility for the opinions contained therein beyond expressing the views that the subjects they treat of are worthy of the attention of Grand Jurors. JANUARY-FEBRUARY, 1931 NO. 1 ALLOW COMMENT UPON DEFENDANT'S FAILURE TO TESTIFY By HON. FRANKLIN TAYLOR Judge of the Kings County (Criminal) Court, Brooklyn, N. Y. I concur with the frequently expressed opinion that the law should be changed so as to permit adverse comment on a defendant's failure to take the stand where he is clearly in a position to affirm or deny testimony offered against him. It is generally conceded that, where a de- fendant avails himself of his privilege to testify in his own behalf, both the trial judge and the prosecuting attorney may com- ment to the jury on his failure to meet any issues which are clearly within his ability to admit or refute, or concerning the manner in which he attempts to do so. Then why not concede the propriety of similar comment where the defendant fails to take the stand? Possibly a brief historical reference may indicate the error of false reasoning into which bench and bar seem to have slipped, on this point. At common law, no party to a legal pro- ceeding, either civil or criminal, was per- mitted to testify. The reason was that a party, being interested in the result, his tes- timony would be presumably false. For the same reason no outside witness was per- mitted to testify unless shown to be disin- terested. The result of this ruling was a widespread denial of justice, as in a vast percentage of cases there was no nossibility of either prov- ing .ag the issue by disinterested witnesses. Defendants Allowed to Testify A change in the rule was bound to come. It came by statutory enactment, both in Eng- land and in the United States. One of those enactments was to permit defendants in criminal cases to testify in their own behalf. There came the rub. If defendants could testify in their own behalf, would an infer- ence of guilt flow from their failure to do so? That this was a groundless fear is appar- ent when we face the stern logic of the pre- sumption of innocence rule. The latter ef- fectually bars any presumption which may tend to vitiate it. Nevertheless, the fear of a mere legal phantom seems to have obsessed both legislatures and courts, in dealing with the changed rule. And so it was provided, in this and in other jurisdictions, that a defendant's ne- glect or refusal to testify does not create any presumption against him. (Code of Criminal Procedure, N. Y., Sec. 393). Were that all, we would have little diffi- culty, because as above pointed out, the pre- sumption of innocence rule forbids any pre- sumption of guilt under any circumstances whatever. The difficulty lies in the purely judicial construction, that no comment may be made by either the court or the prosecuting at- torney on the fact that a defendant has failed to contradict evidence concerning mat- ters clearly within his personal knowledge. In Ruloff vs. The People, 45 N. Y. 213, (1871) the reason is advanced that it is a hardship for a defendant to subject himself to cross-examination. Such reason was not recognized by the common law, but was a modern reaction in favor of ultra-caution in dealing with the human liberty problem. An Obstruction to Justice In the sixty years which have since elapsed LEGISLATIVE COMMITTEE The following members have been appointed on a Committee to urge the enactment of certain bills in the 1931 New York Legislature: Carl Brandt, Chairman George B. Agnew Frederic W. Lord Charles L. Robinson Lionel F. Straus James B. Taylor Mr. Carl Brandt has been appointed chairman in place of Mr. Charles L. Robinson, who will be absent during the spring months. we have found it to be an obstruction to justice, a prolific source of confusion, and a rule inimical to the interests of law and or- der as against the interests of the criminal classes. The present view, as evidenced by the English rule, the Federal Court rule, and the rule in some States other than New York, is that comment is permissible in any case where a defendant is in a position to either affirm or deny accusatory evidence. In the law, as in all other subjects, the sta- bility of civilized institutions lies in our ability to keep both feet on the ground. Con- cededly, we should hold fast to the protective bulwarks of personal liberty which by the blood of our forebears have been won. But the soundness of that viewpoint does not divert from the necessity for acknowledging a fallacy where such is found to exist, and to enact such corrective legislative measures as tend to prevent continued deviations from logical standards. Lest there be misunderstanding as to the extent to which this expression goes, permit me to state that comment on a defendant's muteness never should be permitted concern- ing matters other than such as have been made the subject of specific proof by wit- nesses for the prosecution. Statutory Modification Needed To vary the present rule to that extreme would be to indeed vitiate the presumption of innocence, such as, for instance, by forc- ing an alibi where the necessity for alibi is, not indicated. Any statutory variation should, be strictly limited to such elements of prose- cutory proof as must be necessarily within the knowledge of the defendant. As to such elements, however, legitimate comment by court and counsel has much to do with the strength of the same, as scrutinized and ap- praised by a trial jury. Permit me, in conclusion, to express the hope that in our own jurisdiction a statu- tory modification may be enacted at an early date. VOL. 9

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