In re Opinion of the Justices

• Decision Date: 06 June 1938
• Citation: 15 N.E.2d 662,300 Mass. 620
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 620

15 N.E.2d 662

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

June 6, 1938.

Opinions of the honorable the Justices of the Supreme Judicial Court in response to a question propounded by the Senate.

LUMMUS, J., dissenting.On May 25, 1938, the Senate adopted the following order:

Section 1 of the bill therein referred to reads as follows:

Section 1. Section twenty of chapter two hundred and thirty-three of the General Laws is hereby amended by striking out clause Third, as appearing in the Tercentenary Edition, and inserting in place thereof the following:

Third. The defendant in the trial of an indictment, complaint or other criminal proceeding shall, at his own request, but not otherwise, be allowed to testify; but his neglect or refusal to testify shall not, except as hereinafter provided, be made the subject of any comment by the prosecution or by the court. If the defendant does not testify but introduces evidence tending to show reasons for his failure to testify, the prosecution may be permitted, in the court's discretion, to introduce evidence in rebuttal and to comment on the failure of the defendant to testify. If the counsel for a defendant who has failed to testify comments on such failure, the prosecution may be permitted, in the court's discretion, to comment thereon. If the defendant fails to testify and if the court is satisfied at the close of the evidence that it would be in the power of the defendant, if not guilty, truthfully to contradict by his testimony material evidence as to his guilt introduced by the prosecution, the court may in its discretion instruct the jury that, while the prosecution could not have called the defendant as a witness, he might have elected to be a witness in his own behalf and that in weighing the evidence it may take into consideration his failure to testify.

On May 26, 1938, the order was transmitted to the Justices, who, on June 6, 1938, returned the following answer:

Whereas, There is pending before the Senate a bill entitled ‘An Act relative to the neglect or refusal to testify of an accused person in any criminal proceeding’, printed as Senate document numbered five hundred and six, a copy whereof is hereto annexed; and

Whereas, Grave doubt exists as to whether said bill, if enacted into law, would be violative of the provisions of the Constitution of the Commonwealth; therefore be it

Ordered, That the opinions of the Honorable the Justices of the Supreme Judicial Court be required by the Senate on the following important question of law:--

Is it competent for the General Court to enact legislation, substantially as set forth in said bill, providing that under certain circumstances the neglect or refusal of a defendant in a criminal proceeding to testify may be made the subject of comment at his trial, notwithstanding the provisions of Article XII of Part the First of the Constitution of the Commonwealth?

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit this answer to the question proposed in an order adopted on the twenty-fifth day of May, 1938, a copy where of is hereto annexed.

It is provided by art. 12 of Part I of the Constitution of the Commonwealth that ‘No subject shall be * * * compelled to accuse, or furnish evidence against himself.’ Defendants in criminal causes could not be witnesses until the passage of St.1866, c. 260. Commonwealth v. Fortier, 258 Mass. 98, 101, 155 N.E. 8.

It is said in Commonwealth v. Mullen, 97 Mass. 545, 546: ‘The statute which allows a defendant in a criminal case, at his own request and not otherwise, to testify in his own behalf (St.1866, c. 260), expressly provides that ‘he shall be deemed a competent witness'; that is, competent not for a special purpose, or to give evidence only which shall operate in his own favor, but competent to testify to any facts relevant and material to the issue. Like all other witnesses, he is to tell the truth and the whole truth concerning any matter proper to be inquired about. If he offers himself as a witness, he waives his constitutional privilege of refusing to furnish evidence against himself, and may be interrogated as a general witness in the cause.’ St.1866, c. 260, was repealed by St.1870, c. 393, § 5, and a new statute was enacted by § 1, cl. Third, in substantially the form now found in G.L.(Ter.Ed.) c. 233, § 20, cl. Third.

In Commonwealth v. Harlow, 110 Mass. 411, it is said: ‘The St. of 1870, c. 393, § 1, which makes defendants who are charged with crimes and offences competent witnesses, provides that their neglect or refusal to testify shall not create any presumption against them. This provision conforms to Article 12 of the Declaration of Rights, which declares that no subject shall be compelled to furnish evidence against himself. Since this class of defendants are allowed to testify if they will, there is some danger that if one exercises his right of silence, the jury will look upon it as a proper matter to weigh against him in considering the question of his guilt. It is important that courts should carefully guard his constitutional right.’

In Commonwealth v. Maloney, 113 Mass. 211, at page 214, referring to the same statute, it was said: ‘The statute is explicit; and the exemption should be scrupulously secured to the defendant. * * * It is doubtless intended to carry out the spirit and purpose of the clause in the Declaration of Rights, that no subject shall ‘be compelled to accuse or furnish evidence against himself.’ A bare literal compliance with the terms of this provision is not all that a defendant is entitled to.' Commonwealth v. Nichols, 114 Mass. 285, 287,19 Am.Rep. 346; Emery's Case, 107 Mass. 172, 9 Am.Rep. 22.

It was in substance declared in Commonwealth v. Scott, 123 Mass. 239, 240, 241,25 Am.Rep. 87, that that clause of the Constitution embodied an ancient rule of the common law. Under our system of jurisprudence the government has no right to interrogate a person accused of crime or to compel him to testify, but must sustain its charge by independent evidence. The accused has the right simply to deny his guilt, and to rely upon the legal presumption of his innocence until he is proved to be guilty. ‘The statutes allowing persons charged with the commission of crimes or offences to testify in their own behalf were passed for their benefit and protection, and clearly recognized their constitutional privilege, by providing that their neglect or refusal to testify shall not create any presumption against them. Sts.1866, c. 260; 1870, c. 393, § 1, cl. 3. And this court has decided that such silence cannot be taken into consideration by the jury in determining whether a defendant is or is not guilty, and that an equivocal instruction upon this matter entitles the defendant to a new trial; Chief Justice Chapman saying, ‘It is important that courts should carefully guard his constitutional right.’ Commonwealth v. Harlow, 110 Mass. 411.' Phillips v. Chase, 201 Mass. 444, 450, 87 N.E. 755,131 Am.St.Rep. 406;Commonwealth v. Finnerty, 148 Mass. 162, 166, 19 N.E. 215;Cmmonwealth v. Richmond, 207 Mass. 240, 248, 93 N.E. 816,20 Ann.Cas. 1269;Commonwealth v. Farmer, 218 Mass. 507, 514, 106 N.E. 150;Attorney General v. Pelletier, 240 Mass. 264, 316, 134 N.E. 407;Commonwealth v. Hanley, 140 Mass. 457, 5 N.E. 468.

It was held in Commonwealth v. Clark, 14 Gray 367, 373, that the omission of the defendant to produce a witness other than himself, to meet and explain evidence tending to prove his guilt, was proper for the consideration of the jury. In Commonwealth v. Smith, 163 Mass. 411, 430, 40 N.E. 189, in dealing with the statute which provides that neglect or refusal to testify shall not create any presumption against the defendant, it was said (page 196): ‘But it may be assumed that the provision of the constitution [art. 12] needs no statute to reinforce it in this particular, and that the refusal to testify before the grand jury could create no presumption against the defendants, whether the above statute applies or not. This means no presumption upon which a legal judgment or consequence could rest. * * * The protection afforded by the constitution is that the individual shall not be prejudiced at law by his silence, if he keeps silent.’

The decisions already cited indicate a trend of opinion that that protection against an inference or presumption from the silence of a defendant in a criminal prosecution is constitutional and not merely statutory. We think that this is the position taken in 4 Wigmore on Evidence, 2d ed., § 2272. It was said in Twining v. New Jersey, 211 U.S. 78, 91, 29 S.Ct. 14, 16, 53 L.Ed. 97: ‘The exemption from testimonial compulsion, that is, from disclosure as a witness of evidence against oneself, forced by any form of legal process, is universal in American law, though there may be differences as to its exact scope and limits. At the time of the formation of the Union the principle that no person could be compelled to be a witness against himself had become embodied in the common law and distinguished it from all other systems of jurisprudence. It was generally regarded then, as now, as a privilege of great value, a protection to the innocent, though a shelter to the guilty, and a safeguard against heedless, unfounded, or tyrannical prosecutions.’

The present statute, G.L.(Ter.Ed.) c. 233, § 20, cl. Third, is in these words: ‘Third, The defendant in the trial of an indictment, complaint or other criminal proceeding shall, at his own request, but not otherwise, be allowed to testify; but his neglect or refusal to testify shall not create any presumption against him.’ In view of the number of decisions dealing with that clause, there is no doubt touching its constitutionality.

We are of opinion that the final sentence of clause ‘Third’ in § 1 of the proposed bill, being lines nineteen to...