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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Possibly a brief historical reference may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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