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§ 426. The Constitutionality of Appeal by the Government in Criminal Cases.

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In the dissenting opinion filed by Justices Holmes, White and McKenna, in Kepner v. United States, it is argued that it is within the constitutional power of Congress to provide for a writ of error on behalf of the government in criminal trials, whereby errors of law committed in the trial court may be corrected, and, when proper, a new trial of the accused ordered. Though the verdict or judgment may have been in his favor upon the first trial, the accused, it is declared, is not, by the new trial, subjected to a second jeopardy. The jeopardy, it is argued, is one continuing jeopardy, from the beginning to the end of the cause. The principle of the immunity from second jeopardy in its origin, it is declared, was that a trial in a new and independent case could not be had where a man had already been once tried; not that he may not be tried twice in the same case. In fact, the argument continues, he may be tried a second time where the jury disagrees, or the verdict is set aside on the prisoner's bill of errors, or, indeed, he may be tried on a new indictment if the judgment on the first is arrested upon motion.

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Despite this argument, the weight of authorities, both state and federal, is overwhelming that, as stated earlier in this chapter, a verdict or judgment in a lower court of competent jurisdiction is final and conclusive as to the defendant. Provision has, however, been made in some of the States, and similar action has recently been taken by Congress, to provide for a review at the instance of the Government in a superior court of questions of law, with, however, the proviso that a verdict in favor of the defendant shall not be set aside. The objection, however, to such a proceeding is not only that it raises in the superior court merely moot questions, but that, irrespective of whether the superior courts will feel themselves bound or even constitutionally qualified to pass upon points with reference to which they are not able to issue any appropriate orders, there is the objection that the

63 195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114. 64 Ex parte Lange, 18 Wall. 163; 21 L. ed. 872.

defendant having no reason for contesting them, the decisions will be based upon ex parte argument, with all the evils generally recognized as thereupon attending.

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The federal act referred to is that of March 2, 1909, which provides as follows: "That a writ of error may be taken by and on behalf of the United States from the district or circuit courts direct to the Supreme Court of the United States in all criminal cases, in the following instances, to wit: From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded. From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded. From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy. The writ of error in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted and shall have precedence over all other cases. Pending the prosecution and determination of the writ of error in the foregoing instances, the defendant shall be admitted to bail on his own recognizance: Provided, That no writ of error shall be taken by or allowed the United States in any case where there has been a verdiet in favor of the defendant." 66

8427. Self-Incrimination: Immunity from, not a Requirement of Due Process of Law.

By the Fifth Amendment it is provided: "Nor shall any person be compelled, in any criminal case, to be a witness against himself." The guaranty thus furnished is one independent of the guaranty of "due process of law" and is thus one which, so far as the federal Constitution is concerned, is not secured to the individual in the state courts. After an elaborate consideration

65 Cf. Harvard Law Rev., XX, 219. 66 34 Stat. at L., Pt. I. 1246.

of the meaning of the phrase " due process of law" and an historical review of English practice with reference to the immunity of the accused from self-incrimination, the court, in Twining v. New Jersey, say: "We think it is manifest, from this review of the origin, growth, extent and limits 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 an equivalent expression, 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 as a wise and beneficent rule of evidence developed in the course of judicial decision." Continuing, the court show from the circumstances attending the incorporation of the privilege in the federal Constitution and from the fact that four of the States in their first constitutions did not insist upon the privilege where it would have a much wider application, that it was not considered to be inherent in due process of law. Finally, the court say: "Even if the historical meaning of due process of law and the decisions of this court did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which is the inalienable possession of every citizen of a free government. Salutary as the principle may seem to the great majority, it cannot be ranked with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption has never been universally assented to since the days of Bentham, many doubt it to-day, and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. It has no place in the jurisprudence of civilized and free countries outside of the domain of the common law, and it is nowhere observed among our own people in the search for truth outside the administration of the law."

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67 211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97.

68 Citing Wigmore on Evidence, § 2251.

$428. Self-Incrimination: What Constitutes.

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If the answer will tend merely to disgrace but not to incriminate the witness, the privilege does not apply. If, however, the answer is one which can have no bearing upon the case except to impair the credibility of the witness, he may refuse to answer. The immunity which is provided has for its object the protection of the individual against criminal prosecution based upon evidence which has been compulsorily obtained from him. Thus the provision is no bar to the use in a subsequent prosecution of evidence that has been voluntarily given by the accused; nor does it prevent the courts from compelling testimony with reference to acts no longer punishable, or where, by statute, subsequent use of the evidence so obtained in criminal actions has been forbidden. Thus also the immunity does not relate to evidence the tendency of which is merely to discredit the moral character of the witness.70

In Hale v. Henkel" the court declare the broad doctrine that the line is drawn at testimony that may expose the witness to criminal prosecution. "If the testimony relate to criminal acts long since past, and against the prosecution of which the statute of limitations has run, or for which he has already received a pardon, or is guaranteed an immunity, the amendment does not apply. The criminality provided against is a present, not a past criminality, which lingers only as a memory, and involves no present danger of prosecution."

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§ 429. Right May Be Waived.

If the witness waives his privilege, and discloses his criminal connections, he may not stop, but must make a full disclosure of the facts regarding which he is interrogated.72

€9 See authorities cited in Brown v. Walker, 161 U. S. 591; 16 Sup. Ct. Rep. 644; 40 L. ed. 819.

70 The State authorities are in conflict as to this.

71 201 U. S. 43; 26 Sup. Ct. Rep. 370; 50 L. ed. 652.

72 Brown v. Walker, 161 U. S. 591; 16 Sup. Ct. Rep. 644; 40 L. ed. 819, and authorities there cited.

§ 430. When Right May Be Claimed.

In 1807 in Burr's Trial Chief Justice Marshall lays down the broad doctrine which has been generally acquiesced in, that where the witness avers under oath that the answer to the question which has been propounded to him will tend to incriminate him, no other testimony may be demanded by the court as to this fact. "If the question be of such a description that an answer to it may or may not incriminate the witness, according to the purport of that answer, it must rest with himself, who alone can. tell what it would be, to answer the question or not."

The fact that the immunity from prosecution afforded by a federal statute gives the witness no security from prosecution in the state courts as to matters regarding which he is asked to testify, is immaterial.74

§ 431. To Compel Testimony Statutory Immunity Must Be Complete.

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Where the right to compel testimony is based upon a statute granting immunity from subsequent prosecution, the immunity granted must be complete. Absolute protection against later criminal actions for the offense to which the testimony relates must be provided. Thus in Counselman v. Hitchcock the court held with reference to testimony before the Interstate Commerce Commission, that immunity granted by Section 860 of the Revised Statutes providing that "no evidence given by the witness shall be in any manner used against him in any court of the

73 Burr's Trial, 244.

74 Brown v. Walker, 161 U. S. 591; 16 Sup. Ct. Rep. 644; 40 L. ed. 819. The converse of this, namely, that because the immunity granted by a state statute to prosecution does not extend to prosecutions in the federal courts the witness is not excused from testifying, is declared in Jack v. Kansas, 199 U. S. 372; 16 Sup. Ct. Rep. 73; 50 L. ed. 234. This doctrine is approved in Hale v. Henkel (201 U. S. 43; 26 Sup. Ct. Rep. 370; 50 L. ed. 652), the court saying: "Indeed, if the argument were a sound one, it might be carried still further and held to apply not only to state prosecutions within the same jurisdiction, but to prosecutions under the criminal laws of other States to which the witness might have subjected himself" The English doctrine is the same. See Wigmore on Evidence.

75 142 U. S. 547; 12 Sup. Ct. Rep. 195; 35 L. ed. 1110.

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