§ 233]

Self-Crimination.

321

ceeding to disclose facts which would tend to subject him to a criminal prosecution. Under the civil-law system as administered in France and some other European countries, one who is put on trial for a crime is subjected to an inquiry into his whole life and conduct, without regard to its relevancy to the particular crime with which he is charged; and in such countries physical torture was formerly permitted for the purpose of securing confessions of guilt. But such proceedings were not recognized as justifiable by the common law as it prevailed in England at the time that the American colonies became independent, and are not permitted in any of the states of the Union. Some of the rules resulting from the recognition of the principle that a witness cannot be required to give selfcriminating testimony are the following: Admissions of guilt made outside of court cannot be proven against one accused of crime unless they are voluntarily made. The accused cannot be required to testify in a criminal case. In no case either civil or criminal can a witness be compelled to give testimony tending to show that he has been guilty of a crime, nor to produce books and papers having such tendency.

As to some crimes it is found so difficult to secure the evidence of persons not implicated that statutes have been passed in various states providing that as to certain classes of crimes persons implicated therein may be required to testify against others, with the provision that their testimony shall not afterwards be used against themselves in prosecutions for the same crime; but to these statutes it has been objected that they subject the witness to the ignominy of disclosing his criminal conduct, and to the danger that after his connection with the crime has been discovered his guilt thereof may be proven by other evidence to which his enforced disclosure has furnished a clue ; and it is thought that such statutes do not adequately protect the person required to testify unless it is provided further that he shall not subsequently be held accountable in a criminal prosecution for any crime committed by him in any way connected with the transaction with reference to which he is compelled to testify (Brown v. Walker).

234. Speedy and Public Trial.

State constitutions usually contain a provision similar to that found in the federal constitution, that "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial" (Amend. VI). But these provisions are rather directory than mandatory in character. One accused cannot insist on a trial otherwise than in accordance with the usual and recognized method of procedure in a court of justice, and it may result that even against his will the trial is postponed until his guilt can be properly investigated and the evidence against him secured. Statutory provision is usually made, however, for giving preference to criminal over civil cases, so that the trial of criminal prosecutions may be had as soon as practicable, and it is not uncommon to provide that one accused of crime shall be released after the second term of court at which he might have been tried has passed without his case being reached, unless his own fault or request or some unusual emergency has brought about a further postponement.

By public trial is meant a trial in open court and this is the usual method of procedure in all American judicial tribunals. The requirement of a public trial does not, however, prevent the exclusion from the court room of witnesses, for the purpose of preventing them from hearing the testimony given by other witnesses so as to be able to conform their own testimony to that of others whom they may be called upon to corroborate or controvert; nor does it prevent the like exclusion of children, or even the general public who have no direct interest in the case, in prosecutions which are of such character that their presence might tend to the corruption of their morals or the morals of the community.

235. Trial by Jury; Venue.

It is further provided (Amend. VI) that the trial in criminal prosecutions is to be "by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." This

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Trial by Jury.

323 is analogous to a rule of the common law formerly recognized in England requiring that in criminal prosecutions the jury shall consist of persons summoned from the vicinity where the crime was committed; but such a rule no longer prevails in the states, and it is usually left to be determined by statute in what county of the state a criminal trial shall be held. It is generally required that, save where a crime is continuous in its nature and has been partly committed in two or more counties, or has been commenced in one county and the final result accomplished in another, the trial must be in the county of the commission of the crime. It is no longer regarded as desirable or even expedient that persons familiar with the circumstances of the crime shall serve as jurors for the trial of the accused.

But there is paragraph in the federal constitution as first adopted requiring criminal trials in the federal courts to be by jury, in this language: "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state the trial shall be at such place or places as the Congress may by law have directed" (Art. III, § 2, T3). As no federal district includes two states or parts of two states, this provision is complied with if the crime is tried by the proper federal court for the district in which the crime is committed; and Congress has made direction as to crimes against the United States not committed in any state (as, for instance, on the high seas) by providing that if the crime is committed outside the limits of any of the districts, the trial shall be had in the district in which the accused is arrested, or if arrested outside of any of the districts, then in

1 Reference is no doubt made to this rule of the common law in the complaint embodied in the Declaration of Independence that the king had deprived the colonists of the benefit of jury trial and transported them beyond the seas for trial for offences; but it is more distinctly referred to in the "Declaration of Rights" adopted by the First Continental Congress in 1774 in which this language is used: “The respective colonies are entitled to the common law of England and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law."

the district into which he is first brought after being arrested. The manifest purpose is to avoid the possibility that the prosecuting officers shall select for the trial of one accused of crime some particular court or district in which they shall have a better chance of securing conviction than in some other, or that they shall unnecessarily inconvenience or oppress the accused by subjecting him to trial at a great distance from the place where the crime was committed, thus making it more difficult for him to secure the attendance of witnesses.

236. Right to be Informed of the Accusation.

It is of the very essence of due process of law in criminal cases that the accused “be informed of the nature and cause of the accusation," as required by Amendment VI, and by similar provisions in state constitutions. If the crime is one triable only on indictment by a grand jury, the indictment must state in accurate legal terms the facts showing the accused to be guilty of the crime charged, and he can only be convicted on proof of the facts thus alleged. The purpose of the constitutional requirement is that the accused may have full opportunity to defend against the charge made, by introducing evidence tending to meet that introduced by the prosecution to establish his guilt on such charge. This opportunity would not be afforded him if he could be convicted on evidence tending to show the commission of a different crime, or the same crime in a different manner than that stated in the indictment. In prosecution by information instead of indictment there must be the same definiteness in the information as is required in case of indictment.

237. Right to be Confronted with Witnesses.

The requirement of Amendment VI that the accused in a criminal prosecution must be confronted with the witnesses against him is simply a statement of a rule of common-law procedure in prosecutions for crime which is generally recognized in the constitutions of the states. The purpose of such require

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Confronted with Witnesses.

325 ment is to enable the accused to subject the witnesses against him to the tests of credibility afforded by cross-examination and impeaching evidence, and to have the jury pass upon the weight of their testimony in view of such tests and their general conduct and appearance while testifying. Experience has shown. that these are valuable means for arriving at the truth. In civil cases testimony may be authorized to be taken by deposition to be read in evidence without the presence of the witness, the deposition having been given and sworn to before some officer authorized to administer oaths, but the constitutional provision that the accused in a criminal prosecution must be confronted by the witnesses against him prevents the testimony of witnesses for the prosecution being introduced by depositions. The accused may, if he sees fit, waive the constitutional requirement and permit testimony to be given by deposition, and he may introduce such testimony on his own behalf, if authorized by statutory provisions. It may result from this constitutional requirement that the prosecution will be unable to convict, if some essential fact in connection with the commission of the crime can only be proven by witnesses who are outside of the state, as the state cannot compel the attendance of witnesses from beyond its limits.

There are at least two apparent exceptions to the rule requiring the defendant to be confronted by the witnesses against him, which are made by the courts in the practical administration of justice. (1) In a prosecution for criminal homicide the dying declarations of the person killed with reference to the circumstances of the homicide and the connection of the accused therewith may be shown. The reason usually given for this exception is that one who believes himself to be about to die is as likely to tell the truth as though he were under oath and subjected to cross-examination, and the exception as to dying declarations is accordingly limited to statements made by the injured person under the sense of impending death which in fact follows soon after the statements are made. (2) Another apparent exception is found in the admission on a second trial of the testimony given against the accused on a former trial by