Ferguson v. State of Georgia, No. 44

• Court: United States Supreme Court
• Writing for the Court: BRENNAN
• Citation: 365 U.S. 570,81 S.Ct. 756,5 L.Ed.2d 783
• Parties: Billy FERGUSON, Appellant, v. STATE OF GEORGIA
• Docket Number: No. 44
• Decision Date: 27 March 1961

365 U.S. 570 81 S.Ct. 756 5 L.Ed.2d 783 Billy FERGUSON, Appellant,

v.

STATE OF GEORGIA.

No. 44. Argued Nov. 14, 15, 1960. Decided March 27, 1961.

Mr. Paul James Maxwell, Atlanta, Ga., for appellant.

Mr. Dan Winn, Cedartown, Ga., for appellee.

Mr. Justice BRENNAN delivered the opinion of the Court.

The State of Georgia is the only State—indeed, apparently the only jurisdiction in the common-law world—to retain the common-law rule that a person charged with a criminal offense is incompetent to testify under oath in his own behalf at his trial. Georgia in 1866 abolished by statute the common-law rules of incompetency for most other persons. However, the statute, now Georgia Code § 38 416, expressly retained the incompetency rule as to persons 'charged in any criminal proceeding with the

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commission of any indictable offense or any offense punishable on summary conviction * * *.' Two years later, in 1868, Georgia allowed the criminal defendant to make an unsworn statement. The statute enacted for that purpose, as amended, is now Georgia Code, § 38—415, and provides: 'In all criminal trials, the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his defense. It shall not be under oath, and shall have such force only as the jury may think right to give it. They may believe it in preference to the sworn testimony in the case. The prisoner shall not be compelled to answer any questions on cross-examination, should he think proper to decline to answer.'

In this case a jury in the Superior Court, Douglas County, Georgia, convicted the appellant of murder, and he is under sentence of death. After the State rested its case at the trial, the appellant's counsel called him to the stand, but the trial judge sustained the State's objection to counsel's attempt to question him. To the argument that to deny counsel the 'right to ask the defendant any questions on the stand * * * violates * * * (Amendment) VI * * * (and) the Fourteenth Amendment to the Constitution of the United States * * * (because) it deprives the defendant of the benefit of his counsel asking him questions at the most important period of the trial * * *,' the trial judge answered that under § 38—415, '* * * you do not have the right to do anything more than instruct your client as to his rights, and * * * you have no right to question him on direct examination.' In affirming the conviction and sustaining this ruling, the Supreme Court of Georgia said:

'The constitutional provisions granting to persons charged with crime the benefit and assistance of counsel confer only the right to have counsel per-

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form those duties and take such actions as are permitted by the law; and to require counsel to conform to the rules of practice and procedure, is not a denial of the benefit and assistance of counsel. It has been repeatedly held by this court that counsel for the accused cannot, as a matter of right, ask the accused questions or make suggestions to him when he is making his statement to the court and jury.' 215 Ga. 117, 119, 109 S.E.2d 44, 46—47.

On appeal brought here under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), we noted probable jurisdiction. 362 U.S. 901, 80 S.Ct. 616, 4 L.Ed.2d 553.

The only question which the appellant properly brings before us is whether this application by the Georgia courts of § 38—415 denied the appellant 'the guiding hand of counsel at every step in the proceedings against him,' Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55; 64, 77 L.Ed. 158, within the requirements of due process in that regard as imposed upon the States by the Fourteenth Amendment. See also Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4.

Appellant raises no question as to the constitutional validity of § 38—416, the incompetency statute.¹ However, decision of the question which is raised under § 38—415 necessarily involves consideration of both statutes. Historically these provisions have been inter-

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twined. For § 38—416 is a statutory declaration of the common-law rule disqualifying criminal defendants from testifying, and § 38 415, also with its roots in the common law, was an attempt to mitigate the rigors of that incompetency.

The disqualification of parties as witnesses characterized the common law for centuries. Wigmore traces its remote origins to the contest for judicial hegemony between the developing jury trial and the older modes of trial, notably compurgation and wager of law. See 2 Wigmore, Evidence, pp. 674—683. Under those old forms, the oath itself was a means of decision. See Thayer, Preliminary Treatise on Evidence, pp. 24—34. Jury trial replaced decision by oath with decision of the jurors based on the evidence of witnesses; with this change '(T)he party was naturally deemed incapable of being such a witness.' 2 Wigmore, p. 682. Incompetency of the parties in civil cases seems to have been established by the end of the sixteenth century. See 9 Holdsworth, History of English Law, p. 194. In time the principal rationale of the rule became the possible untrustworthiness of the party's testimony; for the same reason disqualification was applied in the seventeenth century to interested nonparty witnesses.²

Its firm establishment for criminal defendants seems to have come somewhat later. In the sixteenth century it was necessary for an accused to conduct his own defense,

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since he was neither allowed to call witnesses in his behalf nor permitted the assistance of counsel. 1 Stephen, History of the Criminal Law of England, p. 350. The criminal trial of this period has been described as 'a long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other's arguments with the utmost eagerness and closeness of reasoning.' Stephen, supra, p. 326. In the process the defendant could offer by way of explanation material that would later be characterized as testimony. 2 Wigmore, p. 684. In the seventeenth century, however, he was allowed to call witnesses in his behalf; the right to have them sworn was accorded by statute for treason in 1695 and for all felony in 1701. 7 Will. III, c. 3; 1 Anne, St. 2, c. 9. See Thayer, supra, pp. 157—161, and n. 4; 2 Wigmore, pp. 685—686. A distinction was drawn between the accused and his witnesses—they gave evidence but he did not. See 2 Wigmore, pp. 684—685, and n. 42; 9 Holdsworth, supra, pp. 195—196. The general acceptance of the interest rationale as a basis for disqualification reinforced this distinction, since the criminal defendant was, of course, par excellence an interested witness. 'The old common law shuddered at the idea of any person testifying who had the least interest.' State v. Barrows, 76 Me. 401, 409. See Benson v. United States, 146 U.S. 325, 336—337, 13 S.Ct. 60, 63—64, 36 L.Ed. 991.

Disqualification for interest was thus extensive in the common law when this Nation was formed. 3 Bl.Comm. 369.³ Here, as in England, criminal defendants were deemed incompetent as witnesses. In Rex v. Lukens, 1 Dall. 5, 6, 1 L.Ed. 13, decided in 1762, a Pennsylvania court refused

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to swear a defendant as a witness, holding that the issue there is question 'must be proved by indifferent witnesses.' Georgia by statute adopted the common law of England in 1784, and '* * * the rules of evidence belonging to it * * * (were) in force there * * *.' Doe ex dem. Patterson v. Winn, 5 Pet. 233, 241, 8 L.Ed. 108. Georgia therefore followed the incompetency rule for criminal defendants long before it was given statutory form by the Act of 1866. See Jones v. State, 1 Ga. 610; Roberts v. State, 189 Ga. 36, 40—41, 5 S.E.2d 340, 343.⁴

Broadside assaults upon the entire structure of disqualifications, particularly the disqualification for interest, were launched early in the nineteenth century in both England and America. Bentham led the movement for reform in England, contending always for rules that would not exclude but would let in the truth. See Rationale of Judicial Evidence, bk. IX, pt. III, c. III (Bowring ed.), pp. 393—406. The basic ground of the attack was, as Macaulay said, that '(A)ll evidence should be taken at what it may be worth, that no consideration which has a tendency to produce conviction in a rational mind should be excluded from the consideration of the tribunals.' Lord Macaulay's Legislative Minutes, 1835, pp. 127—128. The qualification in civil cases of nonparty witnesses despite interest came first. See Lord Denman's Act of 1843, 6 & 7 Vict., c. 85. The first general exception in England for party witnesses in civil cases was the County Courts Act of 1846, 9 & 10 Vict., c. 95, although there had

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been earlier grants of capacity in certain other courts. Best Evidence (Lely ed. 1893), pp. 158—159. Lord Brougham's Act of 1851, 14 & 15 Vict., c. 99, virtually abolished the incompetency of parties in civil cases.⁵

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The qualification of criminal defendants to give sworn evidence if they wished came last. The first statute was apparently that enacted by Maine in 1859 making defendants competent witnesses in prosecutions for a few crimes. Maine Acts 1859, c. 104. This was followed in Maine in 1864 by the enactment of a general competency statute for criminal defendants, the first such statute in the English-speaking world. The reform was largely the work of John Appleton of the Supreme Court of Maine, an American disciple of Bentham. Within 20 years most of the States now comprising the Union had followed Maine's lead. A federal statute to the same effect was adopted in 1878, 20 Stat. 30, 18 U.S.C. § 3481, 18 U.S.C.A. § 3481. Before the end of the century every State except Georgia had abolished the disqualification.⁶

Common-law jurisdictions outside the United States also long ago abolished the disqualification. This change

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came in England with the...