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Report No. 69

IV. Position in U.S.A.

83.18. Uniform Rule.-

In the U.S.A., the Uniform Rules of Evidence provide-

"Rule 21. Limitations on Evidence of conviction of crime as affecting Credibility-Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility."

83.19. New Jersey.-

In the New Jersey Rules1 of Evidence provision reads as follows:-

"Rule 25. Self-incrimination etc.-Subject to rule 37,2 every natural person has a right to refuse to disclose in an action or to a police officer or other official, any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate, except that under this rule.

(d) subject to the same limitations on evidence affecting credibility as applied to any other witness, the accused in a criminal action, or party in a civil action who voluntarily testifies in the action upon the merits, does not have the privilege to refuse to disclose in that action any matter relevant to any issue therein."

It may be noted that under this rule, cross-examination of an incriminating character or in respect of other offence is not allowed.

1 Carlson Cross-Examination of Accused, (1966-67) 52 Cornell LQ 705.

2 Brown v. United States, (1958) 356 US 148.

83.20. It may be noted that in the United States, the accused is a competent witness-in federal prosecutions since 1878.1 In Brown v. United States, (1958) 356 US 148, Frankfurter, J. made the following observations which summarise the law applicable to criminal defendants who testify in their own behalf:

"Our problem is illumined by the situation of a defendant in a criminal case. If he takes the stand and testifies in his own defence, his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. 'He has no right to set forth to the jury all the facts which tend in his favour without laying himself open to a cross-examination upon those facts'.-Fitzpatrick v. United States, 178 U.S. 304, 315; and see 157 U.S. 301, 304, 305. The reasoning of these cases applies to a witness in any proceeding who voluntarily takes the stand and offers testimony in his own behalf. It is that reasoning, that controls the result in the case before us."

1. Carlson Cross-Examination of Accused, (1966-67) 52 Cornell LQ 705.

83.21. In the case of Brown, the actual proceeding related to a civil defendant, whom it was proposed to punish summarily for criminal contempt committed in the actual proceedings of the court. The petitioner admitted that she was a member of the Communist League, but denied that she belonged to a Communist Party during the period before 1946. She refused to answer questions about activities and associations that were unlimited in time or directed during the period of 1946, on the ground that the answers might incriminate her; and the District Court sustained the claim of privilege. But the court held that the petitioner had waived the claim of privilege, and convicted her of contempt.

This conviction was upheld by the court of Appeal on the ground of waiver. In the Supreme Court of the U.S.A., Frankfurter, J., speaking for the majority, declared that the rule applicable in criminal cases that, one who takes the stand and testifies thereby foregoes the right regarding matters made relevant for direct examination, was applicable equally in civil cases. Frankfurter J. referred to the two earlier cases.-2 in discussing the position of the criminal defendant. Analysing the constitutional privilege in this setting, he adverted, inter alia, to Fitzpatrick v. United States, (1958) 356 US 148 (153): 44 Law Edn. 1080, (supra), and pointed out that a defendant has no right to set forth all the facts in his favour without laying himself open to cross-examination on these facts.

The judgment contains relevant comments which seem to indicate that waiver of the fifth amendment privilege extends to matters opened up by the party on direct examination, but perhaps only that far.Commentators have summarised Brown as laying down a constitutional rule of limited waiver. Thus, in a note in the Harvard Law Review,3 the Brown case is summarised as holding that a defendant who voluntarily takes the stand waives the privilege against self-incrimination to the extent of cross-examination on matters raised by his own testimony on direct.

1. Fitzpatrick v. United States, 44 Lawyers Edn. 1080 (1083).

2. Reagan v. United States, 39 Lawyers Edn. 791.

2. Note The Supreme Court, 1967 Term, (1958) 72 Harvard Law Review .77, 177.

It is interesting to note, moreover, that Brown was cited by the Seventh Circuit as imposing constitutional limitations on cross-examination in criminal prosecutions.1-2 In reviewing a criminal conviction, that court carefully noted that the cross-examination of the defendant who testified was related to his direct testimony. The court went on to observe:

"In a criminal case, if a defendant voluntarily takes the stand to testify in his own behalf, his testimony may be impeached and he may be cross-examined. The extent of the waiver of the privilege against self-incrimination is determined by what the defendant's testimony makes relevant for cross-examination."

These federal decisions contain distinct indications to the effect that a limited cross-examination of the accused is required by the fifth amendment. Much of the language militates in the direction of extending the waiver of the constitutional privilege to matters opened up on direct examination, but not beyond. As stated by one writer:3

"In the absence of special statutory provision, courts following the federal rule hold that a defendant in taking the stand in a criminal case waives his constitutional privilege not to testify to the extent that the federal rule permits cross-examination."

Under this view, the waiver extends only to matters touched upon in direct examination, since this is the extent to which the federal rule permits cross-examination. Another commentator has concluded:4

"The constitutional privilege against self-incrimination and the statute of 1878, permitting the defendant to testify have been construed as requiring a restrictive cross-examination."

1. United States ex rel. Irwin v. Date, 357 F ed 911 (915-16) (7th Cir.).

2. Cross Examination of the Accused, 52 Cornell LQ 716. 3 Note (1939) 24 Iowa L Rev 564, 569, cited in 52 Cornell LQ 716.

4. Orfield Examination of witnesses in Federal Criminal Caste, (1962) 4 Ariz. L Rev 215, 240 (1962); Orfield (1964) The Privilege against Self-incrimination in Federal Cases, 25 U Pitt L Rev 503, 553 (1964).

83.22. The doctrine of limited waiver is recognised elsewhere in the law of evidence in the U.S.A. Most of the authorities agree that if the accused takes the stand for the purpose of testifying on a preliminary question, such as the voluntariness of a confession, this is not to be taken as a complete waiver. Many cases limit the waiver to the particular issue, because it is felt that to do otherwise would penalise the defendant for testifying.1

1. McCormick, s. 131; see also, Maguire Evidence of Guilt, section 2.082 (2) (1959); Model Code of Evidence rule 208, comment (1942).

83.22A. Thus, in the U.S.A., the matter has been discussed from the point of view of the constitutional privilege also, the precise question being-"Is cross examination beyond the scope of the direct examination prohibited by the privilege against self-incrimination?" In 1954, the (federal) privilege against self-incrimination was extended to the states in Malloy v. Hogan, (1964) 378 US 1. Following this extension, the privilege was applied to limit stringently pre-trial interrogation of suspects by state officers,1 and to prohibit comment on the accused's refusal to testify at trials.2

The constitutional problem has obvious ramifications for those jurisdictions which permit wide cross-examination. If a rule of restricted cross-examination is constitutionally required, then a wide interrogation may be unconstitutional.

1. Miranda v. Arizona, (1966) 384 US 436; Escobedo v. Illinots, (1964) 378 US 478.

2. Griffin v. California, (1965) 380 US 609.



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