State v. Baker , 115 Vt. 94 ( 1947 )

I concur in the dissenting opinion of the Chief Justice but as I have additional reasons for dissenting I shall state them as briefly as possible.

I cannot agree with the holding of the majority that No. 52 of the Acts of 1935 is constitutional. By article 10 of chapter 1 of our constitution it is provided that in criminal cases a person cannot be compelled to give evidence against himself, or, in other words, that a respondent cannot be compelled to take the witness stand. The right thus given is absolute and unconditional. A respondent is entitled to the full protection given him by this constitutional provision. If the jury may be instructed by the court that they may draw inferences from the failure of a respondent to take the stand and, especially, if the prosecuting attorney may comment to the jury on such failure, then the right and protection guaranteed by the constitution is broken down if not completely nullified. The constitutional right is so shorn and stripped by the statute that what is left is a mere naked right of no particular value.

The majority adopt the reasoning in the dissenting opinions inState v. Wolfe, 64 S.D. 178, 266 N.W. 116, 104 A.L.R. 464, andOpinion of the Justices, 300 Mass. 620, 15 N.E.2d 662, which held that statutes similar to No. 52 of the Acts of 1935 were in violation of constitutional provisions like article 10 of chapter 2 of our constitution. In support of this dissent I rely on the opinions of the majority in those cases. Our own Court inState v. Cameron, 40 Vt. 555, 565, indicated it considered that a statute such as the one in question would be unconstitutional. True it is, as stated by the majority, that the statement in the opinion in the case to the effect that our constitution forbids a prosecuting attorney to argue that the failure of a respondent to testify is evidence against him was dictum as far as the constitution is concerned but at least it shows how our Court, as then constituted, felt about the question here under consideration. In Connecticut, as stated by the majority, it is held that the drawing by the jury of unfavorable inferences from the neglect or refusal of a respondent to testify does not violate its constitutional provision against self-crimination. In that state prior to 1879 it was provided by statute that such neglect should not be commented on by the prosecuting attorney or by the court. This statute was changed so as to repeal the prohibition against comment by the court, leaving in effect the prohibition against comment by counsel to the court or jury. In State v. Heno, 119 Conn 29, 174 A 181, 94 A.L.R. 696, the court in the course of its opinion holding that under the cases in that state and the statute in its changed form, the Court has the right of comment says, in respect to the statute as then worded, "The evil which the statute is designed to prevent is the placing, in the argument of the state, of undue and unfair emphasis upon the failure of an accused to testify". Thus, it seems to me, the Connecticut court has recognized impliedly, at least, that to give the right of comment to the prosecution attorney would be unconstitutional. Also in support of my position see Wigmore on Evidence, 3rd ed. Secs. 2272, 2272a and 2273.

The majority quote from and rely heavily on the historical background of constitutional provisions similar to ours as set forth by various judges and authors. Whatever may have been the historical reasons for the granting of this constitutional protection, the fact is that it is granted in positive and unequivocal terms. There is nothing in the wording of article 10 which indicates an intention to grant less than the full right therein set forth. It must be presumed that the dissenting opinions of the various justices in the South Dakota and Massachusetts cases, supra, setting forth the historical reasons relied upon by the majority in the case at bar were fully considered by the other justices sitting in those cases and rejected by the majority in each case as valid reasons for holding the acts in question constitutional.

It seems to me so obvious that the constitutional right of a respondent is invaded by a statute permitting comment to be made and inferences to be drawn from his failure to testify that nothing more need be said in support of this patent fact. However, in support of my position and in answer to some of the reasons given by the majority in support of their holding I shall discuss the matter further.

The position of the majority in regard to inferences seems to be that they will be drawn in any event by the jury so it cannot reasonably be said that the constitutional provision was aimed against them and that no statute directing that they should not be drawn is of any avail. My answer is that our statute of 1866, set forth in the majority opinion, and similar statutes in other states providing that the refusal of a person to testify should not be considered by the jury as evidence against him, supplemented the various constitutional provisions granting the right to refuse to take the witness stand. These statutes recognized the right that was so granted and took means to fully preserve it. If jurors deliberately disobeyed the instructions of the court, that has no bearing on the question before us. The full right of constitutional protection existed and it could not lawfully be taken away by the wrongful action of a jury.

It is admitted by the majority that the statute in question may place a respondent in a dilemma. Of course this is so. InState v. Wolfe, supra, the majority stated that the right of comment would compel every defendant in a criminal case to take the witness stand and testify and thereby subject his whole life's record to the most relentless cross-examination, or face the alternative of having the prosecutor, in the most violent manner, parade before the jury the claimed fact that the defendant is guilty because he chose to stand upon his constitutional rights.

The majority here take the position that if one is innocent he has nothing to fear in taking the stand. In State v.Cleaves from Maine, quoted from extensively in the majority opinion, it is said that the embarrassment of the prisoner, if embarrassed, is the result of his own previous misconduct, not of the law. I do not agree with either the position taken by the majority or the statement in the Cleaves case. In this latter case it is assumed that every respondent who is embarrassed by the predicament in which he is placed by the right of the jury to draw inferences against him if he fails to take the stand is a guilty person. This is not at all necessarily so. An innocent person may well be so embarrassed. He may be innocent of the crime charged but have a criminal record which will be paraded before the jury if he takes the stand. He may be innocent but easily confused by cross-examination and made thereby to appear guilty. His looks or personality may indicate guilt though he be innocent. Other examples might be given to illustrate that the innocent as well as the guilty are affected adversely by the statute in question to the derogation of their constitutional rights.

The majority contend that the permission to comment and draw inferences no more compels a respondent to take the stand than do all the mechanics of a criminal trial which are a form of moral coercion. They say that if this permission is in violation of the constitutional rights of a respondent then the right to draw an inference against an accused because of his failure to call witnesses to deny or explain unfavorable testimony is also unconstitutional. To my mind these claimed analogies are not in point. The right granted by the constitution to a respondent to refuse to take the stand is one personal to him. This constitutional protection does not otherwise affect the mechanics of a criminal trial nor does it apply to the rule as to inferences from a failure to produce evidence. Wigmore, supra, Sec. 2273.

If the right to draw inferences from and to comment on the failure of a respondent to take the stand should, as a matter of public policy be granted, it must be conferred by constitutional amendment, and not by legislation. The constitutions of Ohio and California have been amended apparently for this purpose.

For the reason that I believe No. 52 of the Acts of 1935, which amended P. L. 2383, is unconstitutional, and for none other, I should reverse the judgment and order a new trial.

UPON MOTION FOR REARGUMENT. SHERBURNE, J. After the opinion had been handed down the respondent moved for a reargument on account of two statements in the opinion which he claimed to be inaccurate and not to state the law correctly.

He claims that the statement, "Nothing in the Federal Constitution applies," overlooks the Fourteenth Amendment to the Federal Constitution. The opinion cites Twining v. New Jersey,211 U.S. 78, 29 S. Ct. 14, 53 L ed 97, in support of this statement. That is the final authority upon this question, and directly supports the statement.

He calls attention to the statement

"Even in the case of a respondent with mental or language deficiencies, or with a prior criminal record which may affect his credibility as a witness, if his counsel will bare these in his direct examination, rather than wait to have them shown upon cross-examination, the jury will give him fair consideration if his testimony rings true."

and suggests that it cannot be reconciled with the rule that a party cannot impeach his own witness. There is no difficulty here. We have long recognized that questions to a witness directed toward aiding the jury in setting a proper estimate on his testimony are preliminary in their nature and may properly be asked in direct examination, as, for example, questions which relate to the age of the witness, his residence, his occupation, and his condition in life. 70 CJ 555. Questions relative to the matters mentioned in the quoted statement come under this rule also.

Motion for Reargument denied.