Chamberlain v. Willson & Prescott

The opinion of the court was delivered by

Redfield, J.

— It is well settled, that a witness is not bound to answer any question, the answer to which might tend to criminate him, i. e. expose him to a prosecution for crime, or penalty.

It is doubtless true, that this is not the most effectual mode *493 of shielding the witness ; for the -mere fact of claiming the privilege tends very much to show him guilty of the of-fence. A" rule that the testimony should-be given in all cas-' es, but should never after be used for the purpose of procuring a conviction of crime, would be more conducive to the reasonable ends of justice, and at the same time afford full protection to the witness. But such is not the law. It is well settled that the testimony, if freely given, may be after-wards used against the witness. I know indeed of no rule to exclude the testimony being given in evidence against the witness, even in a prosecution of a criminal nature, although the witness were compelled to testify under the requisitions of a court of justice. It is obvious, then, that the only security of the witness-is in silence. The rule should be so administered as to afford full protection to the witness, and at the same time escape simulated excuses.

It is the privilege of the witness, and he may waive it. And if he submit to testify about the very matter tending to criminate himself, without claiming his privilege, he must submit to a full cross-examination. In 22 E. C. L. R. 244, n. (a.) Lord Tenterden, C. J. said, the objection belonged to the witness, and he would notallow the counsel to argue it. In the case of Dixon v. Vale, 11 E. C. L. 391, the witness, before testifying to the principal matter, was cautioned, and told that he was not obliged to testify, but he still chose to go forward, and the court would not suffer him afterwards to retract his waiver of the privilege. In all cases where the question, tending to elicit matters involving the witness in^a suspicion of crime, fir t arises on cross-examination, the witness is still allowed his privilege, unless he has understandingly waived it. Rex v. Pitcher, 11 E. C. L. 323. In this latter case the question seemed to be wholly collateral to the principal issue, and tending rather to disgrace the witness, than to show him guilty of crime. But the rule is well settled, that the privilege must be claimed by the witness. Ordinarily, I apprehend, when testimony is expected from a witness, so situated as to be interested in this privilege, he should be told, either by the counsel or by the court, at the suggestion of the counsel, that if the matter- will tend to criminate him he is not obliged to testify; but if he begins, he is then bound to make a full disclosure..

*494 From this view of the subject it is obvious that the witness must first determine whether he can make a full disclosure without stating any fact, tending, in any degree, to criminate himself. If he informs the court, upon oath, that he cannot testify without criminating himself, the court cannot compel him to testify, unless they are fully satisfied such is not the fact, i. e. that the witness is either mistaken, or acts in bad faith, in either of which cases the court should compel the witness to testify.

From the facts detailed in the bill of exceptions, in the present case, it is very certain the court did right in not compelling the witness to give testimony, and their judgment must be affirmed.