ference may be drawn against the defendant from his failure to testify in his own behalf is not an encroachment upon the rights set out in the fourteenth amendment under the due process clause or under the clause prohibiting abridgment of rights of a citizen of the United States.

The right against self-incrimination and its early development is discussed in that decision and the following excerpt may be helpful in properly analyzing the question under consideration:

"Nothing is more certain in point of historical fact than that the practice of compulsory self-incrimination in courts and elsewhere existed for four hundred years after the granting of Magna Charta, continued throughout the reign of Charles I, gained at least some foot-hold among the early colonists of this country, and was not entirely omitted at trials in England until the eighteenth century. ***We think it is manifest from the review of the original growth, extent and merits of the exemption from compulsory self-incrimination in the English law that it is not regarded as a part of the law of the land of Magna Charta or the due process of law which has been deemed an equivalent explanation but on the contrary, is regarded as separate from and independent of due process. It came into existence, not as an essential part of due process but a wise and beneficent rule of evidence developed in the course of judicial decision. This is a potent argument when it is remembered that the phrase was borrowed from English law and that to that law we must look, at least for its primary meaning. ***

"It has already appeared that prior to the formation of the American Constitutions, in which the exemption from compulsory self-incrimination was specifically secured, separately, independently and side by side with the requirement of due process, the doctrine was formed, as other doctrines of the law of evidence have been formed, by the course of decision in the courts, covering a long period of time. Searching further we find nothing to show that it was then thought to be other than a judicial and useful principle of law. None of the great instruments in which we are accustomed to look for the declaration of the fundamental rights made reference to it. The privilege was not dreamed of for hundreds of years after Magna Charta (1215) and could not have been implied in the 'law of the land' there secured. ***We think that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution. Mr. Justice Harlan dissenting."

But it is my understanding that the provisions of Amendment 5 of the Federal Constitution do prohibit the government in a criminal action for the violation of a Federal statute from calling the defendant to testify for the government and against himself and the defendant's security under that amendment is further protected by a Federal statute which provides that "In the trial of all indictments the person so charged shall, at his own request but not otherwise, be competent as a witness and his failure to make such request shall not create any presumption against him.”

Without the latter statutory provision, however, it would undoubtedly be perfectly proper for a jury in the trial of a Federal case to

draw the inforence of guilt from the defendant's failure to testify in his own behalf. Nor does it necessarily follow that the privilege against self-incrimination, as provided in the constitutions of all of the states except New Jersey and Iowa should prohibit the drawing of an inference against one on trial in the state court for a crime, who avails himself of the privilege and does not testify in his own behalf. In other words, a state may provide in its constitution that "No person shall be compelled in a criminal case to be a witness against himself"

and yet undoubtedly by statute authorize counsel for the state to comment on the defendant's failure to testify in his own behalf and also authorize the trial court to instruct the jury that an inference of guilt may be drawn from such failure on the defendant's part. However, all of the states of the Union with the exception of Georgia, New Jersey, Ohio and South Carolina have by proper legislation prohibited comment and an inference of guilt.

In the case of State v. Gruber, 19 Idaho 692, the Supreme Court of Idaho has said that the trial court should instruct the jury in a proper case that no presumption can be raised against the defendant by reason of his refusal to testify.

For a long time under the Common Law no defendant, either in a civil or a criminal prosecution, was permitted to testify in his own behalf. He was regarded as a party in interest whose bias necessarily rendered his testimony unworthy of consideration. So long as the rule prevailed under the Common Law practice the worst of criminals could almost with impunity shield himself behind his lawyer's eloquent explanation that his client had "a perfect defense" but that the law had "sealed his lips." Then ostensibly for the benefit of the innocent accused the old rule was changed so as to permit a defendant to testify in his own behalf. That rule is in this country universally regarded as a very marked improvement over the old rule prohibiting the defendant from offering an explanation of his And while the rule permitting defendant to offer an explanation of his case and privileging him to remain silent was adopted particularly for the benefit of the innocent accused it has been impossible to extend to him the intended benefits of the rule without giving the guilty accused a shelter to which he was not entitled. And so zealous have we been in seeing that the innocent accused is denied none of the benefits intended for his protection that we have freed the one innocent man and have also come near to the point of permitting the ninety-nine guilty to escape.

case.

Jeremy Bentham as early as 1872 strongly criticized the privilege. And according to no less an authority than Wigmore, who favors the privilege:

"In less than three generations nearly every reform which Bentham advocated for the law of evidence has come to pass.

And we might almost regard his condemnation of any rule as presumably an index of its ultimate downfall."

Bentham characterized the argument for the privilege as the "Old Woman's Reason," the gist of that reason being:

"It is hard upon a man to be obliged to criminate himself." He characterized another reason for the privilege as the "Fox Hunter's Reason." He says:

"This consists in introducing upon the carpet of legal procedure the idea of 'fairness' in the sense in which the word is used by sportsmen; the fox is to have a fair chance for his life. He must be given leave to run a certain length of way for the express purpose of giving him a chance for escape."

Mr. Justice J. F. Stephen had outlined the true history of the privilege in 1857 in his essay on the Judicial Societies Papers. His summary of the history shows that the rule of privilege "arose from a peculiar and accidental state of things which has long since passed away and that our modern law is in fact derived from somewhat questionable sources though it may no doubt be defended." In 1883 Justice Stephen in his history of the criminal law, in contrasting the privilege against self-incrimination with the Continental system which prevailed in France and which permitted a prosecutor to "examine suspected persons secretly and without informing them even of the accusation or evidence against them, taking depositions behind their backs and keeping them in solitary confinement till every effort had been made to extort a confession from them" and permitting the magistrate in the course of the trial to question the accused and demand explanations from them, quoted an experienced civil officer who had remarked: "There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade, rubbing red-pepper into a poor devil's eyes, than to go about in the sun hunting up evidence." Chief Justice Appleton of the Supreme Court of Maine, who was a disciple of Jeremy Bentham, in 1871 in the case of State v. Cleaves in commenting upon the privilege stated:

"The defendant in criminal cases is either innocent or guilty. If innocent he has every inducement to state the facts which would exonerate him. The truth would be his protection. There can be no reason why he would withhold it and every reason for its utterance. His declining to avail himself of the privilege of testifying is an existent and obvious fact. It is a fact patent in the case. The jury cannot avoid perceiving it. Why should they not regard it as a fact of more or less weight in determining the guilt or innocence of the accused? The silence of the accused, the omission to explain or contradict, when the evidence tends to establish guilt is a fact-the probative effect of which may vary according to the varying conditions of the different trials in which it may occur which the jury must perceive and which perceiving they can no more disregard than one can the light of the sun when shining with full blaze upon the open eye. The embarrassment of the prisoner, if embarrassed, is the result of his own previous conduct, not of the law. If inno

cent he will regard the privilege of testifying as a boon justly conceded, if guilty it is optional to testify or not, and he cannot complain of the election he may make."

In the year 1901 the Wisconsin branch of the American Institute of Criminal Law and Criminology recommended that the Wisconsin constitutional provision that no person shall be compelled in any criminal case to be a witness against himself, be abolished on the ground that it had outlived its usefulness and described the constitutional provisions as a hiding-place for crime and one that should be destroyed.

1. In the year 1912 the constitution of the State of Ohio was amended so as to provide as follows:

"No person shall be compelled in any criminal case to be a witness against himself; but his failure to testify may be considered by the court and jury and may be made the subject of comment by counsel."

After the

This amendment became effective January 1, 1913. above amendment had become effective and the practice it inaugurated had been tried out for several years a questionnaire was sent out to various prosecutors throughout the State of Ohio. The questionnaire contained the following questions:

1. How many criminal trials were conducted in your county during the year ending September 1st?

2. In how many of these trials did accused take the stand in his own behalf?

3. Do you believe that the change which permits the prosecutor to comment on the failure of the accused to testify is a wise one?

4. Would you favor a provision requiring accused to testify against himself even when called by the State?

Answers were received from 52 counties, including all of the counties which have cities of any considerable size. According to Walter T. Dunmore of the Law School of Western Reserve University, these prosecutors reported that they had conducted 1658 criminal trials during the year. In 1507 of these cases the accused took the stand and testified in his own defense. Without exception each of the 52 prosecutors reported that he favored the provision of the Ohio constitution which permitted an inference and comment and many were very emphatic in stating their approval. Fifteen prosecutors were in favor of requiring the accused to testify against himself as a witness for the state, while 37 were opposed. The reports from all of these counties showed that 90 4/5 per cent of all cases which actually came to trial the accused took the stand in his own behalf. The four most densely populated counties in each of which more than 100 criminal trials were conducted reported a total of 744 cases, in 725 or 97 2/5 per cent of which the defendant elected to testify. In the eleven counties having 50 or more criminal trials each, there were con

ducted 1129 cases and in 1082 or 95 4/5 per cent of the cases the defendants took the stand. The prosecutor of the county, in which Cleveland is located and which is therefore the most densely populated in Ohio, reported that his office had conducted 375 cases during the year; that all except three defendants took the stand and that the three who did not avail themselves of the opportunity of testifying were convicted and all three of these defendants subsequently admitted their guilt.

Quoting Mr. Dunmore: From the above statistics it appears that when comment is permitted upon the failure of the accused to testify the defendant usually takes the stand in his own behalf. Should he fail to do so the prosecutor is in a position to urge the jury to make an inference against the accused in a way which is extremely detrimental to his chance of securing an acquittal. It is sometimes urged by those favoring the right to comment upon the defendant's exercise of his privilege that an inference is certain to be made by the jury and it is impossible to avoid it, while, on the other hand, those who disapprove of drawing an inference from the defendant's failure to exercise his privilege have likewise pointed to the same result, contending that without a statutory provision entitling an inference to be drawn, the jury is certain to draw such inference and that a statutory provision authorizing such inference is therefore unnecessary. But there is a very practical difference between the bare inference which a jury may make in face of the court's instruction that the failure of the defendant to testify in his own behalf shall not be construed against him and the inference driven home as an admission of guilt by a skillful prosecutor, and in the absence of any instruction on the part of the court against any inference.

Mr. Dunmore calls attention to the fact that it may be said that the fact that prosecutors unanimously favor the permission of comment is not at all surprising since these men are ordinarily seeking convictions and naturally have little sympathy with obstacles in the way of obtaining the necessary evidence. But in that regard it is interesting to note that of the 52 prosecutors of Ohio who were in favor of an inference being drawn from the defendant's failure to testify, 37 were opposed to self-incrimination by compelling the defendant to testify for the state and against himself.

Under the practice of permitting an inference in Ohio the prosecution is forced to obtain sufficient evidence to make out a case to go before the jury before it can possibly be in a position to profit by the inference. The prosecution is not tempted to go to trial without sufficient evidence, with a view to the establishment of the case from defendant's own testimony. The innocent defendant is therefore not prejudiced by reason of the fact that the prosecutor has relied upon his expected testimony and has therefore made a careless examination of other sources of proof. Without any testimony from the accused, the state must introduce sufficient evidence to cause the Grand