The legal purpose of a preliminary examination is not the discovery of
a criminal; it is the ascertaining of the probable guilt or innocence
of the person already charged. To permit that person’s counsel to
insult and madden the various assisting witnesses in the hope of making
them seem to incriminate themselves instead of him by statements that
may afterward be used to confuse a jury—that is perversion of law
to defeat justice. The character of the practice is seen to better
advantage contrasted with the tender consideration enjoyed by the
person actually accused and presumably guilty—the presumption of
his innocence being as futile a fiction as that a sheep’s tail is a
leg when called so. Actually, the prisoner in a criminal trial is
the only person supposed to have full knowledge of the facts who is
not compelled to testify. And this exemption is given him by way of
immunity from the snares and pitfalls with which the paths of all
witnesses are wantonly beset. To a visiting Lunarian it would seem
strange indeed that in a Terrestrial court of justice it is not deemed
desirable for an accused person to incriminate himself, and that it is
deemed desirable for a subpœna to be more dreaded than a warrant.
When a child, a wife, a servant, a student—any one under personal
authority—is accused or suspected an explanation is demanded, and
refusal to testify is held, and rightly held, a confession of guilt.
To question the accused—rigorously and sharply to examine him on all
matters relating to the offense, and even trap him if he seem to be
lying—that is Nature’s method of criminal procedure; why in our public
trials do we forego its advantages? It may annoy; a person arrested for
crime must expect annoyance. It can not make an innocent man, even a
mere witness, incriminate himself, but it can make a rogue do so, and
therein lies its value.
This ancient and efficient safeguard to rascality, the right of a
witness to refuse to testify when his testimony would tend to convict
him of crime, has been strengthened by a recent decision of the United
States Supreme Court. That will probably add another century or two to
its mischievous existence, and possibly prove the first act in such
an extension of it that eventually a witness can not be compelled to
testify at all. In fact it is difficult to see how he can be compelled
to now if he has the hardihood to exercise his constitutional right
without shame and with an intelligent consciousness of its limitless
application.
The case in which the Supreme Court made the decision was one in which
a witness refused to say whether he had received from a defendant
railway company a rate on grain shipments lower than the rate open to
all shippers. The trial was in the United States District Court for the
Northern District of Illinois, and Judge Gresham chucked the scoundrel
into jail. He naturally applied to the Supreme Court for relief, and
that high tribunal gave joy to every known or secret malefactor in the
country by deciding—according to law, no doubt—that witnesses in a
criminal case can not be compelled to testify to anything that “_might
tend_ to criminate them _in any way_, or subject them to _possible_
prosecution.” The italics are my own and indicate about as clearly
as extended comment could the boundless immunity that the decision
confirms or confers. It is to be hoped that some public-spirited
gentleman called to the stand in some celebrated case may point the
country’s attention to the state of the law by refusing to tell his
name, age or occupation, or answer any question whatever. And it would
be a fitting _finale_ to the farce if he would threaten the too curious
attorney with an action for damages for compelling a disclosure of
character.