State v. Wolfe , 64 S.D. 178 ( 1936 )

The question presented is the constitutionality of chapter 93, Laws of 1927, which is as follows: "Section 4879. Defendant May be Competent Witness. In the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of any crime, before any Court or committing magistrate, the person charged shall, at his own request, but not otherwise, be a competent witness, and his failure to testify in his own behalf, is hereby declared to be a proper subject of comment by the prosecuting attorney; provided, however, that if such comment is made by the prosecuting attorney in his closing argument, without any previous reference thereto having been made in argument either on behalf of the state or the defendant, the attorney for the defendant may thereafter, if he so request the court, argue upon such comment for such time as the court shall fix." The statute does not contravene the due process clause of the Fourteenth Amendment to the Constitution of the United States. Twining v. New Jersey, 211 U.S. 78, 29 S. Ct. 14, 53 L. Ed. 97. The constitutional provision which it is alleged the above statute contravenes is section 9 of article 6, Constitution of South Dakota, which provides: "No person shall be compelled in any criminal case to give evidence against himself."

The basis of the majority opinion, as I understand it, is that the statute is unconstitutional because it indirectly compels the defendant to go upon the witness stand and testify. I cannot concur in this view. In the first place, it is my opinion that the constitutional provision was aimed only against a direct compulsion, and does not go to the extent of prohibiting comment. Certainly the prohibition against comment is not expressly written into the Constitution, and the only way in which it can be placed there is by interpretation. The statement of the late Judge Andrew A. Bruce in 31 Mich. L. Rev. at page 233, seems to me to be sound and in accord with the historical background which fathered the original enactment of the constitutional provision involved: "All that was in the minds of the framers of the constitutional provisions was the desire to prevent injustice and direct compulsion. Theirs was a protest against and a fear of the inquisition of torture which was even then so prevalent on the continent of Europe and which, though denied, had so often accompanied the proceedings of the Star Chamber. They, too, no doubt had in their minds the excesses which had been committed under the Statutes of Philip and Mary when suspects, who were without the aid of counsel, were ``third-degreed' by the examining magistrates. Their protest was against compulsion and not against the reasonable inferences which might be drawn from voluntary acts or from the use of one's volition in refraining from acting."

In the second place I am not impressed with the argument that permitting the state's attorney to comment on the failure of the defendant to testify indirectly compels the defendant to give evidence against himself. Whether the state's attorney is permitted to comment upon failure of the defendant to take the stand or not, this failure to do so is an obvious occurrence at the trial, and in my judgment stands out in the minds of the jury whether commented upon or not as an outstanding feature in any criminal case. In other words, once you declare the defendant is a competent witness in his own behalf, and the defendant then fails to avail himself of the privilege, then and there the effect of his failure to act becomes complete, and nothing the prosecuting attorney can say will either add to or detract very much from the impression the jury already has of the defendant's failure to take the stand in his own behalf. As the Supreme Court of New Jersey said, the inference which follows a failure to testify "is natural and irresistible. It will be drawn by honest jurymen, and no instructions will prevent it." Parker v. State, 61 N.J. Law, 308, 39 A. 651, 654. Similar statements may be found in other reported cases. No authority denies that in every case in which a defendant refuses to take the stand, the fact is noticed by the jury, and the jury draws the natural inferences therefrom. A statement alleged to have been made by the present Chief Justice of the United States Supreme Court is apt.

"It is clear that reversals because a prosecuting attorney has directed the attention of the jury to a circumstance which no intelligent person can help taking into consideration of his own accord, should have no place in any well ordered system of criminal procedure." From Remarks of Judge Wheeler, Proceedings of the American Law Institute, vol. 9, P. 215. I think the instant case offers a splendid example of the importance of the remarks attributed to Judge Hughes. This defendant has been twice tried and twice convicted. Now we propose to set aside this second conviction because of the fact that the state's attorney has referred "to a circumstance which no intelligent person can help taking into consideration of his own accord."

It seems to me the argument that permitting comment is an indirect method of requiring the defendant to give evidence against himself is founded more in imagination than it is in reason. We know the practical side of trying a law suit, and we know that a prosecutor, even if prohibited by statute, can by innuendo or otherwise refer to the fact that the defendant has failed to become a witness in his own behalf. We not only know that the prosecutor can thus refer to this fact, but we know from actual experience that he does, and that it is done in such a way that no error can be predicated upon it. See State v. Knapp,33 S.D. 177, 144 N.W. 921. So far as compulsion is concerned, therefore, it is my opinion that, were I advising a defendant in a criminal case, and the question arose as to whether or not he should take the stand in his own behalf, the 1927 statute would have little or no effect in aiding me in determining this question on behalf of my client.

In the third place, I believe the reasoning of the Maine court, which is found in the case of State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422, is sound, and from which I quote:

"The statute authorizing the defendant in criminal proceedings, at his own request, to testify, was passed for the benefit of the innocent and for the protecion of innocence.

"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 should withhold it, and every reason for its utterance.

"Being guilty, if a witness, a statement of the truth would lead to his conviction and justice would ensue. Being guilty, and denying his guilt as a witness, an additional crime would be committed and the peril of a conviction for a new offense incurred.

"But the defendant, having the opportunity to contradict or explain the inculpative facts proved against him, may decline to avail himself of the opportunity thus afforded him the law. 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? All the analogies of the law are in favor of their regarding this as an evidentiary fact. All the acts of a party accused, whatever explains or throws light upon those acts, all the acts of others, relative to the crime charged, that come to his knowledge and which may influence him; his loves and his hates, his promises, his threats, the truth of his discourses, the falsehood of his apologies, pretenses, and explanations; his looks, his speech, his silence when called upon to speak; everything which tends to establish the connection between the accused and the crime with which he is charged; every circumstance preceding, accompanying, or following may become articles of circumstantial evidence of no slight importance. A statement is made either to a man or within his hearing, that he was concerned in the commission of a given crime, to which he returns no reply; the natural inference is, that the imputation is well founded or he would have repelled it, — ``silence is tantamount to confession.' Best on Presumptions, § 241. Extrajudicial non-responsion, when a charge is made, is always regarded as an article of circumstantial evidence, the probative effect of which may be weakened by various infirmative considerations, which it is not now necessary to discuss, but which are to be considered and weighed by the jury.

"When the prisoner is on trial, and the evidence offered by the government tends to establish his guilt, and he declines to contradict or explain the inculpatory facts which have been proved against him, is not that a fact ominous of criminality? Is his silence of any the less probative force when thus in court called upon to contradict or explain, by the pressure of the criminative facts, fully proved, than his extrajudicial, silence when a charge is made to him or in his presence? 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, — 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 on the open eye.

"It has been urged that this view of law places the prisoner in an embarrassed condition. Not so. The embarrassment of the prisoner, if embarrassed, is the result of his own previous misconduct, not of the law. If innocent, he will regard the privilege of testifying as a boon justly conceded. If guilty, it is optional with the accused to testify or not, and he cannot complain of the election he may make. If he does not avail himself of the privilege of contradiction or explanation, it is his fault, if by his own misconduct or crime he has placed himself in such a situation that he prefers any inferences which may be drawn from his refusal to testify, to those which must be drawn from his testimony, if truly delivered."

The cases cited in the majority opinion do, without question, contain expressions which support the view therein expressed. Many of these cases, however, were decided under statutes, and the reference to the Constitution was wholly unnecessary. The comment of Mr. Reeder regarding these cases in 31 Mich. L. Rev. page 41, is as follows: "But the courts have seldom had occasion to consider whether the usual provisions (referring to constitutional provisions) by themselves forbid comment upon failure to testify. This is because the accused was nowhere a competent witness before the eighteen-sixties, and the legislation which made him competent nearly always provided that his failure to testify should not create any presumption against him. In view of such statutes it has seldom been necessary for the courts to determine how far the constitutions protect the accused."

The case of Petite v. People, 8 Colo. 518, 9 P. 622, 623, illustrates the point. In that case the statute involved was similar to our statute prior to the enactment of 1927. The state's attorney had referred to the fact that the defendant did not take the witness stand in his own behalf. The court, upon objection by opposing counsel, compelled the state's attorney to discontinue this line of argument and instructed the jury "that the failure of the defendant to testify in his own behalf could not be used to his prejudice and should not be regarded by them." The appellate court held that this instruction cured any error. In the course of the opinion, however, the court said that allowing comment by the prosecuting attorney constituted a violation of the constitutional provision against self-incrimination. This statement, of course, was unnecessary because of the statute, and to me it does not seem to be in accord with the holding of the court. If comment constituted an invasion of the constitutional rights of the defendant, it is difficult for me to see how the invasion of this right could be cured by any instruction of the court. I have always thought the rule to be, that once a constitutional right is violated, that in and of itself is reversible error, and that prejudice or lack thereof is immaterial. State v. Johnson, 50 S.D. 388, 210 N.W. 350; State v. Pickus 63 S.D. 209, 257 N.W. 284. The same criticism could be made of the case of Ruloff v. People, 45 N.Y. 213, which, apparaently, is an outstanding case cited in support of the constitutional inhibition against comment.

The South Dakota cases, especially the case of State v. Vroman,45 S.D. 465, 188 N.W. 746, may quite accurately be classified among the cases which have expressed views to the effect that the Constitution, itself prevented comment when such expression was unnecessary because of a statutory provision. The statute in South Dakota prior to 1927, as construed by this court, prevented comment by the state's attorney, and any reference to the Constitution was unnecessary.

For the reasons above stated, I respectfully dissent from the result reached in the majority opinion.