Journal of Criminal Law and Criminology Volume 51 Article 5 Issue 2 July-August

Summer 1960 The rP ivilege against Self-Incrimination under Foregin Law G. Arthur Martin

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Recommended Citation G. Arthur Martin, The rP ivilege against Self-Incrimination under Foregin Law, 51 J. Crim. L. Criminology & Police Sci. 161 (1960-1961)

This Symposium is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE PRIVILEGE AGAINST SELF-INCRIMINATION UNDER FOREIGN LAW

A. Canada G. ARTHUR MARTIN

The author is a member of the bars of British Columbia and Ontario with offices in Toronto. Mr. Martin for many years has specialized in trial and appellate work in the criminal law field and, in the course of his career, has appeared as counsel for the defense in thirty-eight murder cases. Mr. Martin is Lecturer in Criminal Law and Procedure, Osgoode Hall Law School, Toronto.-EDIoTR.

INTRODUCTION provisions of the Combines Investigation Act Under the British North America Act of 1867,1 fall within the power of the Dominion Parlia- which united the various British Colonies in ment to legislate as to matters falling within the North America in a federal union, legislative class of subjects, 'the criminal law including the power was divided between the central authority, procedure in criminal matters' (s.91, head 27). The substance of the Act the Parliament of Canada, and the legislatures of is by s.2 to define, and the component provinces. The residual legislative by s.32 to make criminal, combines which the authority to make laws "for the peace order and legislature in the public interest intends to good government of Canada" is vested in Parlia- prohibit. The definition is wide, and may cover ment but, in addition, the B.N.A. Act grants activities which have not hitherto been consid- exclusive legislative jurisdiction to Parliament to ered to be criminal. But only those combines legislate in relation to matters coming within are affected 'which have operated or are likely certain enumerated classes of subjects. By section to operate to the detriment or against the 91, clause 27, the Parliament of Canada is given interest of the public, whether consumers, exclusive legislative jurisdiction in relation to the producters or others'; and if Parliament gen- uinely determines that commercial activities "Criminal Law, except the constitution of the courts of criminal jurisdiction, but including the which can be so described are to be suppressed procedure in criminal matters." By section 92 of in the public interest, their Lordships see no the B.N.A. Act, each of the provinces is given reason why Parliament should not make them legislative jurisdiction in relation to matters crimes. 'Criminal law' means 'the criminal law coming within a number of specified classes of in its widest sense': Attorney-Generalfor Ontario subjects including "(13) Property and Civil Rights v. Hamilton Street Ry. Co., [1930] A.C. 524. It in the Province" and "(16) Generally all matters certainly is not confined to what was criminal of a merely local or private nature." Among the by the law of England or of any Province in enumerated classes of subjects assigned to the 1867. The power must extend to legislation to make new crimes. Criminal law connotes provincial legislature is "(15) The imposition of only the quality punishment by fine, penalty, or imprisonment for of such acts or omissions as are enforcing any law of the province made in relation prohibited under appropriate penal provisions to any matter coming within any of the classes of by authority of the State. The Criminal quality subjects enumerated in this section." of an act cannot be discerned by intuition; nor In Proprietary Articles Trade Association v. can it be discovered by reference to an), standard A. G. Can. Lord Atkin, speaking for the Judicial but one: Is the act prohibited with penal conse- Committee of the Privy Council, in discussing quences? Morality and criminality are far from the power of Parliament to create new crimes co-extensive; nor is the sphere of criminality said:-- necessarily part of a more extensive field covered "In their Lordships' opinion s.498 of the by morality-unless the moral code necessarily Criminal Code and the greater part of the disapproves all acts prohibited by the State, in 130 & 31 VicT., c.3 (U.K.). which case the argument moves in a circle. 2 [1931) A.C. 310, 323-4. It appears to their Lordships to be of little G. ARTHUR MVARTIN5 [Vol. 51

value to seek to confine crimes to a category of ments come into conflict the Provincial legislation acts which by their very nature belong to the is superseded or abrogated to the extent that it domain of 'criminal jurisprudence'; for the conflicts with the Dominion legislation.6 domain of criminal jurisprudence can only be An excellent illustration of the division of ascertained by examining what acts at any legislative jurisdiction between the Dominion and particular period are declared by the State to the Provinces is afforded by the judgment of the be crimes, and the only common nature they Ontario Court of Appeal in R. v. Yolles. The will be found to possess is that they are pro- regulation of Highway Traffic is within the legisla- hibited by the State and that those who commit tive jurisdiction of the provinces. them are punished." Section 29(1) of the Ontario Highway Traffic On the other hand, the provinces have the Act,1 provides that: legislative jurisdiction by virtue of section 92(15) "Every person is guilty of the offence of driving to affix penalties to their own competently enacted carelessly who drives a motor vehicle on a legislation in order to enforce it. The power of highway without due care and attention or the provinces to impose penalties to enforce their without reasonable consideration for other legislation with respect to matters committed to persons using the highway." them has resulted in the development of a body The Dominion Criminal CodeP by section 221(1) of law which is sometimes called "Provincial provides that everyone who is criminally negligent Criminal Law.' 3 In R. v. Yolles, 4 Porter, C.J.O., in the operation of a motor vehicle is guilty of an said: indictable offence. "It is, however, one of the powers exclusive to The definition of criminal negligence contained the Province, to impose penalties for the enforce- in section 191 of the Criminal Code requires the ment of its own statutes. Such penal statutes of shoiving of a wanton or reckless disregard for the the Province have been variously designated as lives or safety of other persons.10 'provincial criminal law,' 'quasi-crimes' or The Ontario Court of Appeal held that section offences of a civil nature. They undoubtedly 29(1) was valid provincial legislation in relation to have the essential characteristic of criminal the control of traffic on highways in the province law in that they are penal." and that it was not "in pith and substance" Where the constitutional validity of such enact- legislation in relation to criminal law. Moreover, ments is brought into question the courts must there was no conflict between the provincial examine the legislation to ascertain its true legislation and section 221 of the Criminal Code purpose. The provinces cannot under the guise of which made the criminally negligent operation of inflicting a penalty for the violation of an enact- a motor vehicle a crime since by definition criminal ment of a regulatory nature prohibit conduct as negligence requires "recklessness," a different contra bonos mores and thereby encroach upon the mental attitude to the one required to constitute exclusive jurisdiction of Parliament to create the offence of driving carelessly. crimes.1 6 "There can be a domain in which provincial legis- The courts will examine "the pith and sub- lation may overlap in which case neither legislation stance" of the legislation no matter what form it will be ultra vires if the field is clear, but if the field is may take. There may be an area in which the not clear and the two legislations meet the Dominion legislation must prevail: see G.T.R. v. A.G. Can., [1907] jurisdiction of Parliament and that of the provinces A.C. 65." Lord Tomlin in A.G. Can. v. A.G. B. C., may overlap, that is to say, a province may validly [1930] A.C. 111, 118. legislate in relation to a matter in its provincial 7Provincial Secretary of P.E.I. v. Egan, [1941] S.C.R. 396, 76 Can. C.C. 227. aspect notwithstanding that Parliament might 8R.S.O., c. 167 (1950), as reenacted by 1955 (ONT.) properly legislate in relation to the same matter c.29, §4. from a federal aspect. In this situation the pro- 9 1953-54 (CAN.) c.51. i "191(1) Every one is criminally negligent who (a) in vincial legislation remains valid unless and until doing anything, or (b) in omitting to do anything that it is superseded by federal legislation in pari it is his duty to do shows wanton or reckless disgregard materia. for the lives or safety of other persons." If the Provincial and Dominion enact- 11Cf., Re Dodd, [1957] O.R. 5, 116 Can. C.C. 337, 3 Re McNutt, 47 S.C.R. 259, 21 Can. C.C. 157 where the same court held that §48(1) of the Ontario (1912); Saumur v. Recorder's Court, [1947] S.C.R. 492, Highway Traffic Act was in conflict with §285(2) (now 494. §221(3)) which creates the offense of leaving the scene 4123 Can. C.C. 305, 318 (1959). of an accident with intent to escape liability, civil or ' R. v. Hayduk, [19381 O.R. 653, 71 Can. C.C. 134. criminal, and hence was superseded thereby. 19601 PRIVILEGE AGAINST SELF-INCRIMINATION

This brief description of the provincial power to the accused a compellable witness at the instance create "offences" and the power of parliament to of the prosecution. 6 Moreover, in respect of create "crimes" is of necessity fragmentary but prosecutions for provincial offences in Ontario, some description of the Canadian federal system the accused is a compellable witness for the is necessary in order to understand, in the discus- prosecution. The Ontario Evidence Act by Section sion which follows, the enactments with respect to 1(a) defines "action" as including "a prosecution the abolition of the privilege against self incrimina- for an offence committed against a statute of tion in its federal and provincial aspects. Ontario or against a by-law or regulation made under any such statute" and section 5 provides: SELF-INCRIMINATION IN CANADA "The parties to an action, and the persons on whose behalf the same is brought, instituted, It is necessary to distinguish between the opposed or defended shall, except as hereinafter position of an accused person at his trial on a otherwise provided, be competent and compel- criminal charge and the position of a mere witness. lable to given evidence on behalf of themselves The accused at his trial on a criminal charge is not or of any of the parties and the husbands and a compellable witness, and no questions can be wives of such parties and persons shall except put to him by the court or the prosecutor unless 12 as hereinafter otherwise provided, be competent he chooses to become a witness in his own behalf. 3 and compellable to give evidence on behalf of Section 4 the Canada Evidence Act provides as 7 any of the parties.' follows: The common law privilege protecting a witness "(1) every person charged with an offence and, from answering questions which may tend to except as in this section otherwise provided, incriminate him has been abolished in respect of the wife or husband, as the case may be of the proceedings over which the Parliament of Canada person so charged, is a competent witness for has legislative jurisdiction by the Canada Evidence the defence, whether the person so charged is Act subject to the protection afforded by section charged solely or jointly with any other person." 5 thereof whereby if the witness objects to answer- "(5) the failure of the person charged, or of the ing the answer cannot be used in subsequent wife or husband of such person, to testify, shall proceedings. Section 5 reads as follows: not be made the subject of comment by the "(1) No witness shall be excused from answering judge, or by the counsel for the prosecution." any question upon the ground that the answer Where the accused does testify on his own to such question may tend to criminate him, or behalf he may of course by cross-examination be may tend to establish his liability to a civil required to incriminate himself in respect of the proceeding at the instance of the Crown or of offence charged, and since he puts himself forward any person. as a credible person he may therefore be ques- (2) Where with respect to any question a tioned as to whether he has been previously witness objects to answer upon the ground that convicted.14 He may not, however, be cross-exam- his answer may tend to criminate him, or may ined as to previous misconduct which has not led tend to establish his liability to a civil proceeding to conviction unless such acts are relevant to the at the instance of the Crown or of any person, charge against him, as they may be if they are and if but for this Act, or the Act of any pro- relevant to the issue of identity or to negative 15 vincial legislature, the witness would therefore accident or innocent intent. have been excused from answering such question, Parliament has, however, with respect to offences then although the witness is by reason of this created under federal statutes, occasionally made Act, or by reason of such provincial Act, com- 12"Such person is not a compellable witness and pelled to answer, the answer so given shall not therefore cannot be directly called upon to testify by or on behalf of the Crown." Osler, J.A., in R. v. D'Aoust, be used or receivable in evidence against him in 5 Can. C.C. 407, 3 O.L.R. 653 (1902). 8 WrGmoRE, 1"See, for example, R. V. Fee, 13 O.R. 590 (1887), EViDENCE §2268(2) (3d ed. 1940). where under a provision in the Canada Temperance 13R.S.C., c.307 (1952). Act the accused was compelled to testify at the instance "Id., §12; R. v. D'Aoust, supra note 12; R. v. Dor- of the prosecution. See also R. v. Pantelidis, 79 Can. land, [1948] O.R. 913, 92 Can. C.C. 274, leawe to app. C.C. 46 (1942). ref d, 93 Can. C.C. 135. '7 The Ontario Evidence Act, R.S.O., c.119 (1950). IsKoufis v. The King, [1941] S.C.R. 481, 76 Can. In practice, this right does not appear to be used by the C.C. 161. prosecution. G. ARTHUR MARTIN [Vol. 51

any criminal trial, or other criminal proceeding respect of his answers in relation to a subsequent against him thereafter taking place, other than criminal prosecution for a crime under a federal a prosecution for perjury in the giving of such statute.21 Under the Ontario Evidence Act the evidence." witness who is compelled to answer in a proceeding A similar provision exists in the Ontario Evidence over which the province has jurisdiction is pro- Act dealing with matters over which the Province tected in respect of his answer in relation to a has legislative jurisdiction. Section 7 provides as subsequent prosecution for the violation of a follows: provincial enactment. Similarly, by virtue of the "(1)A witness shall not be excused from answer- Act, if in any proceeding over which the Parlia- ing any question upon the ground that the ment of Canada has jurisdiction the witness is answer may tend to criminate him, or may compelled to answer over his objection, the witness tend to establish his liability to a civil proceed- is protected in respect of that answer in relation ing at the instance of the Crown or of any person to a subsequent prosecution for a violation of a or to a prosecution under any Act of the Legis- provincial enactment. The witness is thus pro- lature. tected in respect of his answer whether the answer (2) If, with respect to any question, a witness is made in a proceeding over which Parliament objects to answer upon any of the grounds has jurisdiction or whether the proceeding is one mentioned in subsection 1, and if, but for this over which the province has jurisdiction, and he is section or any Act of the Parliament of Canada, protected against its use both in respect of a he would therefore have been excused from subsequent prosecution for the violation of a answering such question, then, although the provincial enactment or a federal statute. witness is by reason of this section or by reason It is quite clear that the witness is protected in of any Act of the Parliament of Canada com- respect of the subsequent use of his answers only pelled to answer, the answer so given shall not if he objects, and the court or other tribunal is be used or receivable in evidence against him in not required to advise the witness of his rights. any civil proceeding or in any proceeding under In R. v. TassDKerwin, J., (now C.J.C.) said: "[Tihe any Act of the Legislature." 8 matter seems quite clear that if the person testi- The other provincial legislatures have enacted fying does not claim the exemption, the evidence similar statutes; 9 however, the common law so given may be later used against him, and this privilege of refusing to answer questions which notwithstanding the fact that he may not know may tend to criminate the witness seems to have of his rights." Moreover, the Canada Evidence been retained in Newfoundland and Prince Edward Act applies to all proceedings where a witness may Island with respect to proceedings over which the be lawfully examined under oath and is not 20 provinces have jurisdiction. restricted to judicial proceedings. In R. v. Mazeral1n It is quite clear from the terms of the Canada the accused was charged with the offence of Evidence Act that a witness who is compelled to conspiring to violate the Official Secrets Act, and answer questions in a provincial proceeding by evidence was admitted of answers given by the virtue of a provincial enactment is protected in accused in reply to questions put to him before a Royal Commission consisting of the Honourable 18It will be noted that the Canada Evidence Act pro- vides that if the witness objects to answer his answer Mr.. Justice Kellock and the Honourable Mr. shall not be receivable in evidence against him in any Justice Taschereau constituted by an Order in proceeding thereafter taking place. The Ontario Evi- Council under the provisions of the Inquiries Act24 dence Act merely states that the answer if objected to shall not be receivable in evidence against him in any with power to require witnesses to given evidence proceeding. It might therefore be arguable that al- under oath. Prior to being examined before the though an accused is a compellable witness for the Royal Commission, Mazerall had been taken into prosecution in a provincial prosecution nevertheless if he objected to answer on the ground that his answer custody by an officer of the Royal Canadian would tend to criminate him that answer is protected and is not receivable in evidence against him in the very 21 R. v. Harcourt, 53 Can. C.C. 156 (1929); R. v. proceeding before the court. Simpson & Simmons, 79 Can. C.C. 344 (1943), leave 19R.S. NOVA SCOTLA, c.88, §55 (1954); R.S. NEw to app. to Sup. Ct. of Can. ref'd, 80 Can. C.C. 78. A BRuNswicK, c.74, §7 (1952); R.S. MANITOBA, c.75, §7 fortiori if the answer is compelled under a federal (1954); R.S. ALBERTA, c.102, §8 (1955); R.S. BRiTisn statute. CoLuMmIA,0 c.113, §5 (1948). 22 87 Can. C.C. 97, 99 (1946). 2 R.S. NEWFrOUNDLAND, c.120, §3 (1952); R.S. 2386 Can. C.C. 137, id. 321 (C.A.) (1946). PaiNcE EDwARD ISLAND, c.52, §6 (1951). 24R.S.C., c.99 (1927). 1960] PRIVILEGE AGAINST SELF-INCRIMINATION

Mounted Police and was detained in custody in Under both Dominion and Provincial legislation the police barracks in Ottawa under the authority there are many statutes which create administra- of an Order in Council purporting to be made tive tribunals with all the powers of a court to under powers conferred upon the Governor General summon witnesses and to require them to give in Council by the War Measures Act.25 The Order evidence under oath with respect to the matter in Council empowered the Minister of Justice, if under investigation.n These investigations are satisfied that, with a view to preventing any frequently followed by prosecutions for serious particular person from communicating secret crimes such as conspiracy to defraud, arson, theft and confidential information to an agent of a of securities, combinations in restraint of trade foreign power or otherwise acting in a manner and other offences. The abolition of the privilege prejudicial to public safety, it was necessary so to of a witness to refuse to answer criminating ques- do to make an order that such person be inter- tions enables these tribunals to subject a person rogated and detained. While still in custody under suspected of illegal acts to a most searching the order the accused was brought before the examination which often enables a case to be built Royal Commission and was examined on oath. up against him. In R. v. Barnesn the accused after Both the trial court and the Court of Appeal held his committal for trial on a charge of manslaughter that the accused's answers under oath given was served with a subpoena requiring him to give without objection before the Royal Commission evidence before the coroner.30 The Ontario Court were admissible on his trial for conspiracy. The court clearly recognized the distinction between a/iunde by the evidence of the witness 'Worsley." Sloan, J.A., in R. v. Simpson & Simmons, 79 Can. C.C. the so called confession rule and the privilege of a 344, 357 (1943). witness against self-incrimination. With respect to 28Some examples of this type of legislation may be found in the following statutes: The Ontario Securities evidence given under oath by a witness it was not Act, R.S.O., c.351, §§21, 23 (1950); this statute author- necessary for the prosecution to establish that the izes the appointment of a person or persons to make in- answers were freely and voluntarily made, nor vestigation into the affairs of companies trading in securities and other matters. The Fire Marshal's Act, would their admissibility be affected, as would R.S.O., c.140 (1950), authorizes the Fire Marshal to statements made to the police by inducements or conduct an investigation into the cause, origin or cir- threats held out or exercised by the cumstances of any fire for the purpose to determining police while in whether it was the result of carelessness or design and their custody. to report to the Crown Attorney the result of his findings It is quite clear that documents which are and for this purpose he has the right to summon wit- nesses to give evidence under oath. The Combines In- produced under the compulsion of a statute are vestigation Act, R.S.C., c.314 (1952), authorizes the not protected by section 5 of The Canada Evidence Director of Investigation or a member of the Restrictive Act even though their production is objected to.u Trade Practices Commission appointed under the Act to order that any person present in Canada be examined But while the documents are not protected against on oath where a breach of the Act is suspected. The use by the prosecution in a subsequent criminal Excise Act, R.S.C., c.99 (1952), empowers certain proceeding against the officers to conduct inquiries into matters relating to the witness, they must be excise and to summon witnesses and require them to give proved independently of the evidence of the witness evidence under oath. R. v. Denmark, 72 Can. C.C. 9 as to which objection was taken.Y (1939). 2136 Can. C.C. 40 (1921). 30 The Corners Act, R.S.O., c.70, §18(1) (1950), pro- 2 R.S.C., c.206 (1927). vides that -where a person has been charged with a 1 R. v. Simpson & Simmons, 79 Can. C.C. 344 criminal offence arising out of a death, an inquest (B.C.C.A.) (1943), leave to app. to the Sup. Cf. of Can. touching the death shall be held only upon the direction ref'd, 80 Can. C.C. 78. ("That section is limited by its of the Attorney-General. Undei §25(1) the Coroner has express terms to an answer by a witness to a question the same power to summon witnesses and to punish for and says nothing whatever about the use of incriminat- refusing to give evidence as a court. Section 25(4) pro- ing documents produced by a witness under compulsion vides that a witness shall be deemed to have objected to and after objection. This section therefore can have no answer any question upon the ground that his answer application to the facts of this case and could not and may tend to criminate him and the answer so given cannot be invoked by Simpson to protect him from the shall not be used or be receivable in evidence against use of those documents against him at his trial." Sloan, him in any trial or other proceeding against him there- J.A., 79 Can. C.C. 344, 353.) after taking place other than a prosecution for perjury. 27"1 am satisfied with the admissibility of the books The effect of §25(4) is of doubtful validity in so far as it and documents in question at the trial but yet another purports to affect the admissibility of answers in subse- aspect of the matter remains to be dealt with i.e. the quent criminal proceedings. Section 5 of The Canada method of proof of these documents. No difficulty is Evidence Act applies thereto, and that Act requires the found on this score with relation to the books of account witness to take objection. R. v. Mottola & Vallee, 124 of James Maynard Ltd. They were admittedly proved Can. CC. 288 (1959). G. ARTHUR MARTIN [Vol. 51 of Appeal held that the accused was a compellable crime has so many and so high rights that the witness. The Court held that the fact that Barnes people have none. The administration of our was a defendant in criminal proceedings in which law is not a game in which the cleverer and he was not a compellable witness did not entitle more astute is to win, but a serious proceeding him to exemption in other proceedings. The judges, by a people in earnest to discover the actual however, were widely separated in their views as facts for the sake of public safety, the interest of to the propriety of such action on the part of the the public generally." authorities. Meredith, C.J.C.P., said: The result of the abolition of the privilege "If the proceedings in the Coroner's Court against self incrimination when used as a means are now carried on for the purpose only of of obtaining evidence upon which to base a crimi- extracting from the appellant a confession or nal charge has been to impair substantially the information such as would lead to his conviction traditional concept that a person suspected of a of the crime he is charged with, they would be crime has the right to refuse to furnish evidence not only illegal but also inexcusable." against himself through his own testimonial On the other hand Riddell, J., said: utterances. It would seem, in the interest of "Much has been said as to the alleged hardship fairness, that in all cases a witness subject to upon Barnes in being compelled to give evi- interrogation under oath ought at the very least dence-it is, however, to be hoped that we have to be advised of his right to object and the exemp- not yet arrived at the point that one accused of tion flowing therefrom.

B. England

GLANVILLE L. WILLIAMS

The author is Reader in English Law in the University of Cambridge and a Fellow of Jesus Col- lege, Cambridge. Professor Williams is also a Barrister of the Middle Temple and a Fellow of the British Academy. During the past year, he served as the first Walter E. Meyer Visiting Research Professor in the School of Law of New York University. Professor Williams has written extensively, and his books include THE SANCTITY OF LIFE AND THE CRIMINAL LAW (1956), THE PRoOr OF GUILT (1958), and CRIMINAL LAW: THE GENERAL PART (1953).-EDiTOR.

THE WITNESS'S PRIVILEGE difficulty arising from the federal structure. We do As an English lawyer I think of the privilege not have the waiver rule, so that the witness can make his claim to privilege whenever he wishes. against self-incrimination as the privilege of a witness to refuse to answer a question which may Finally, the judge will disallow the claim unless incriminate him. In England, this privilege has not there is a substantial danger of prosecution. caused anything like the difficulty it has in the THE DEFENDANT'S PRIVILEGE United States, largely perhaps because we do not have anti-communist laws and investigations- The title of the present symposium refers to a we have Communists, but think they are best principle which has been subsumed in American left alone. If a question were ever to arise in the legal thought under the same name as the witness's course of a public investigation whether a witness privilege. This is the privilege of an accused person were a Communist, he could not refuse to answer not to be questioned in court without his offering on the ground of self-incrimination, since the himself for the purpose. In my opinion, it is not profession of Communism is not a crime. aptly called a privilege against self-incrimination, Subsidiary reasons why we hardly ever hear of since it is both more and less than that. On the the privilege against self-incrimination in England one hand, a defendant who does not offer himself are the following. We do not have grand juries for questioning cannot be questioned at all-he trying to build up evidence by inquisitorial proce- has a privilege not only to refrain from incrimi- dure. The police get their evidence by voluntary nating himself by specific answers but to avoid statements, and they prefer it this way. Public being asked the questions. On the other hand, a life is relatively honest, so that there is not much defendant who does offer himself for questioning corruption to investigate. We do not have the no longer has any privilege against self-incrimina- 19601 PRIVILEGE AGAINST SELF-INCRIMINATION

tion in respect of the crime with which he is his mother, counsel for the defence explained the charged. accused's silence by thanking God that "there are The present rule in England on the subject of people who would rather go to their death with questioning the defendant to a criminal charge their lips sealed than that they should speak a remains the compromise settled by the Criminal single word that would reflect on the name of a Evidence Act, 1898. The defendant may elect to mother." The Scottish jury, deprived of the give evidence, and if he does so, he is sworn and opportunity of hearing Merrett and not liking to liable to cross-examination like an ordinary wit- condemn the reason for it, brought in a verdict of ness, except that he cannot generally be cross- "not proven." The sequel was unfortunate, for examined upon his previous convictions. Counsel Merrett later murdered both his wife and his for the Crown may not comment upon the defend- mother-in-law.1 ant's failure to give evidence, but the judge may. A defendant who elects to give evidence and Although at first judges were chary of comment- who then lies is technically subject to prosecution ing, they have come more and more to do so, and for perjury, but it is not the ordinary practice to the result is that the privilege to testify conferred prosecute for this. It seems, however, that occa- 2 upon defendants by the Act of 1898 has consid- sionally prosecutions take place.. erably increased the chance of convicting the The submission of "no case" guilty. It still occasionally happens that a judge takes A defending counsel who is in a dilemma whether the traditional view that the defendant to a to call his client or not can sometimes save himself criminal charge is entitled to maintain silence and, a difficult decision by making a successful sub- accordingly, either fails to draw the jury's attention mission of "no case to answer" (in effect a motion to the fact that the accused has not given evidence for directed verdict or dismissal). The submission is or even directs the jury not to take that fact made at the close of the prosecution's case and against the accused. A striking illustration was must be immediately ruled upon by the judge the direction of Devlin, J., in the trial of Dr. or magistrate, as the case may be. If the ruling is Adams in 1957. Counsel elected not to call the in favour of the submission, the case will imme- defendant, and the judge directed the jury strongly diately come to an end-if the trial is onindictment, against attaching any significance to the defend- a formal acquittal will be taken from the jury ant's silence, maintaining that such reticence upon the judge's direction. Thus the accused will should never be thrown into the scales on the be saved from making any answer. side of the prosecution. This certainly does not The question to be considered upon the sub- represent the ordinary judicial view. It should mission of "no case" is whether it would be proper, also be noticed that there was much evidence before on the evidence already heard, to convict the the court as to what had happened on the occasions accused if he makes no answer. In other words in question: it was perhaps not a case where vital the question is whether the prosecution has given information was evidently in the possession of the reasonable evidence of the matters in respect of defendant which he was withholding from the which it has the burden of proof. As the rule was court. judicially expressed, no case appears unless there The decision whether to call the accused places is "such evidence that if the jury found in favour a heavy burden of responsibility upon counsel for of the party for whom it was offered, the court 3 the defence. By hypothesis, it has been held that would not upset the verdict." there is a case to answer, so that the accused is The rule serves two principal purposes. In the involved in considerable suspicion. If the accused first place, it operates to control the jury, reducing gives evidence, his answers or demeanour may the possibility of capricious verdicts. It is true tell heavily against him. If he keeps out of the that a capricious verdict may be upset on appeal, witness box, the judge may make this a matter of but a defendant is better off to have the charge adverse comment. Occasionally, however, the dismissed at the trial. In the second place, the strategy of keeping the defendant out of the rule gives effect to the principle that a man is witness box is brilliantly successful, if the defend- 1 See T. B. Smith in [1954] CRim. L.R. 500. 2 WrmAms, THE PRooF or GUILT 67 n. (2d ed. ing counsel can think of a plausible excuse for 1958). doing so. At the trial of Merrett for murdering 3Parratt v. Blunt, 2 Cox C.C. 242 (1847). GLANVILLE L. WILLIAMS [VCol. 51

not compelled to answer a charge unless he is mary trials. One might think that a defendant involved in a degree of suspicion. It is an important should not be the worse off if no submission is adjunct to the defendant's privilege of silence made on his behalf, for this is a situation where during the trial; indeed, it is only where the the judge should look after the interest of the defendant succeeds on a submission of "no case" defendant and take the point himself if he thinks that he is perfectly safe in exercising his privilege that the prosecution have not produced sufficient of silence. evidence to be answered. This opinion is, indeed, An illustration of the conditions in which the accepted to the extent that a judge is allowed to submission may be successful is supplied by the take the point of his own motion.7 But he is not case of Atter.4 The facts given in evidence by the regarded as bound to do so, and no criticism is prosecution were that a prostitute was found made of his conduct if he allows the trial to take murdered; the accused admitted he had been its course. with her shortly before her death, and a magazine This distinction has an important consequence was found in his room which told a story of a if the case goes up on appeal. If a submission of motiveless murder remarkably similar to the "no case" has been made and wrongly rejected by killing of the prostitute. On a submission made by the presiding judge, the judge is regarded as counsel for the defence, Devlin, J., directed the having erred in point of law, and accordingly the jury to return a verdict of Not Guilty. The learned defendant may appeal to the Court of Criminal judge explained to the jury that an accused person Appeal on this'ground. Now the rule with regard had a right to demand that the prosecution's case to appeals on questions of law is that the appeal against him should be proved before he went into must be allowed unless the case can be brought the witness box. The evidence here was mere within the proviso to section 4(1) of the Criminal suspicion, and "you cannot put a multitude of Appeal Act, 1907. The usual statement of the suspicions together and make proof out of it." effect of the proviso is that the Crown has to Formerly, the right to submit no case was show that, on a right direction, the jury must have qualified in the case of joint trials. It was held that come to the same conclusion-a rule which in this one of two or more persons jointly tried could not context means that the appeal must succeed, since claim to be released from the proceedings for on a right direction, namely a direction to the insufficiency of evidence against him until all the jury to return a verdict of Not Guilty, the jury evidence for the other defendants was finished.5 must have come to the opposite conclusion from But these rulings, which never had much sense in the one it did.8 them, have been forgotten and departed from.6 Contrast the situation where there is no sub- The position now is that one of co-defendants can mission. Here the judge does not make an error submit "no case" as if he were indicted alone. of law in allowing the trial to proceed, and an There is at least one respect in which the law is appeal against conviction cannot adopt the same in an unsatisfactory state. If counsel for the defence argument as where there has been a submission. makes a submission of "no case," the theory is An appeal may be taken on the ground that there that the judge is bound to rule upon it and to rule was a "miscarriage of justice," an expression in the defendant's favour if there is no case to an- which includes cases where the verdict was un- swer. However, there is some danger for counsel in reasonable having regard to the evidence. How- making the submission, because if it is overruled ever, in deciding this question the Court of Crim- the jury may misunderstand what has passed and inal Appeal will look at the whole evidence, think that the judge is convinced of the guilt of including the evidence given by the defence in the accused. Thus the submission is not generally chief and elicited from the witnesses for the defence made unless it has a good chance of success. on cross-examination.9 It may be that a defective Another reason why the submission might not be case for the prosecution will thus be aided by made in the past was that the accused might not admissions made by the accused on cross-exami- be represented, and although this is now unlikely nation or by evidence given against him by his in a trial on indictment, it may happen in sum- co-defendant.

4 The Times, March 22, 1956; [1956] CR .L.R. 289. 7 George, 1 C.A.R. 168 (1908), 25 T.L.R. 66,73 J.P. 11. 5 Carpenter v. Jones (1828) M. & M. 198 n.; 173 8 See the judgment of Lord Goddard, C.J., in Abbott, E. R. 1130 n.; Martin, 17 Cox C.C. 36 (1889). 6 .Abbott, [1955] 2 Q.B. 497 supra note 6. (C.C.A.). 9 Jackson, 5 C.A.R. 22 (1910). 19601 PRIVILEGE AGAINST SELF-INCRIMINATION

At one time it was clearly settled that this viction, the defendant having in fact been con- liberty to look at the evidence as a whole applied victed without being heard. It is unlikely that a only where there had been no submission. If there defending counsel would be prepared to take this were a submission of "no case" which was wrongly second risk, so that he is almost compelled to rejected, the Court of Criminal Appeal regarded proceed with the case. And the effect of this may itself as not entitled to look at evidence subse- be that the accused is dislodged from his position quently received. This was laid down in Joiner.0 of silence. In a number of subsequent cases the distinction It would be satisfactory in point of legal prin- has been blurred, the Court saying that it is ciple if the decision in Joiner were re-established; always entitled to look at the evidence as a whole. but, in addition, it may be suggested that there However, in all the cases in which this dictum should be no legal distinction between cases where occurs, the point seems to have been obiter." a submission is made and where it is not. The duty Accordingly, it is still open to the Court of Crim- of the presiding judge is to see that justice is inal Appeal to follow the explicit authority of done, whether application is made by counsel for Joiner. The decision in Joiner seems, indeed, to the defendant or not. be logically necessary if the law is not to be at odds with itself. If the trial judge is under a duty Searching the body of the accused to accept a submission and stop the case, it ought In American legal writing, the concept of the not to affect the rights of the accused if the case privilege against self-incrimination has been is improperly allowed to continue. Nor is it only a applied to medical examinations of accused persons matter of logic, for a denial of the principle of by police surgeons, the use of stomach-pumps, Joiner would put an undesirable responsibility and such like. In England we should not think on counsel for the defence. Suppose that his of these problems as raising an issue of self- submission that there is no case to answer is incrimination; they relate merely to the limits on overruled by the trial court. He may go on with the powers of the police in relation to detained per- the case by calling evidence for the defence, but, sons. Although there is little authority, it can be if Joiner is wrong, will take the risk that this said with some confidence that the use of force further evidence may complete the prosecution's against the body of a detained person for the pur- case. The alternative is for him to take no further pose of obtaining evidence is an illegal battery. part in the proceedings and to appeal against There is, however, a common-law power to search conviction. But the risk here is that the appeal arrested persons (the police have not tried to assert court may uphold the decision that there was a that this extends to a search of the body, as distinct case to answer and may therefore affirm the con- from a search of the clothes or exterior); and ma- 104 C.A.R. 64 (1910). gistrates have a statutory power to authorise the 1 See H. Calvert in 1958 CRLu. L.R. 232. taking of fingerprints.

C. France

ROBERT VOUIN

The author is Professor of Criminal Law in the Faculty of Law of the University of Paris. He formerly served on the law faculties of the University of Bordeaux and the University of Poitiers. Professor Vouin is the author of a number of books and is a frequent contributor to legal periodicals in France and elsewhere.-EniToR.

A fundamental general rule of French penal never be legally demanded.' All the more, this con- procedure is that nobody is bound to accuse him- fession can never be extorted through torture or self, that no one is obliged to give evidence against any kind of violence. Nor can it be obtained, ac- himself. Although it may be necessary to denounce cording to the French jurisprudence, by surprise or crimes committed by someone else, according to the Penal Code, the guilty person's confession can I C.P.P., art. 62. ROBERT VOUIN [Vol. s1 by trickery or through some stratagems incom- have obtained while examining the person.4 How- patible with the right to a fair trial. ever, this opinion is not admitted by everybody, However, to understand the true state of the and the problem, which is not linked solely to the law, one must consider its application in several use of narcotics but is raised by every mental concrete settings. testing, has not yet received a solution which would Whenever, in the course of a judicial investiga- certain or final in the French legistation or juris- tion, it becomes necessary to establish or to check prudence. on the identity of a person, the person is bound to It was provided by the "Code d'Investigation lend himself to whatever operations are demanded Criminelle" (Criminal Investigation Code), and it by the investigation or checking.2 Thus, it is cer- has just been confirmed by the Penal Procedure tain that the judicial police officer may take a Code, that the accused person can never be a wit- picture of the person involved and may take his ness in his own trial, and, if he makes some state- fingerprints as well. ments in front of his judges, he does not have to do Since 1954, French legislation has authorized, it under oath. Otherwise, he might have to choose when it is a matter of verification for a crime, a between perjuring himself or accusing himself. The delict, or a traffic accident, blood tests to determine French law saves him from the necessity of this whether the act was committed "under the in- choice by excusing him from the oath and, in so fluence of a state of intoxication." Such tests, in doing, sets aside the possibility of an accused per- any case where they may be useful, also may be son getting a penal sentence for false testimony. carried out on the victim (who may be the guilty The French law does punish the person who, person). Of course, the question is whether a person possessing proof of the innocence of a person prose- has to lend himself to the checking necessary to cuted for a crime or delict, does not produce spon- determine how much alcohol is in his blood. Ac- taneously his testimony to the justice. However, cording to the law, "these verifications are com- the person responsible for a prosecution, as well as pulsory in any case of crime, delect or accident his collaborators and accomplices, is not subject followed by a death. ' 3 However, it does not seem to this obligation of testifying in behalf of the admissible that blood testing should be imposed innocent person. To provide otherwise would re- upon a person who refuses it absolutely. However, quire the person responsible for a false prosecution a person, by his refusal, sets against himself a to accuse himself of a crime.5 presumption which may be retained among all the By the same decree, a similar exemption is other data of proof. granted to the parents and relatives-up to the Several years ago, the question was raised in fourth degree of relationship-of accused persons, France whether an interrogatory under narcotics their collaborators and accomplices. In addition, (narcoanalysis or narcodiagnosis) may be used in the decrees which mention the obligation of re- the judicial procedure. It is quite certain that this porting crimes and attempted crimes do not punish method cannot be used by the judicial police in any refusal to report them when it is the doing of order to obtain confessions or accusations. But it the perpetrator's parents or relatives. 6 And, in the can be used by psychiatrists in carrying out a same way, the accused person's close relatives do mental examination of the accused person. The not speak under oath when they have to appear in best solution is to decide that the doctor may use 7 all the means of his art, and consequently have the trial. recourse to psychoanalysis under narcotics, when On the other hand, witnesses who testify under he wants to have a diagnosis either to try to cure a oath cannot be excused for any personal reasons sick person or to answer a question asked by the from fulfilling the obligations imposed upon them judge concerning penal responsibility. However, in by the oath. Thus, the witness will bring upon him- either situation, the examination should be con- self punishment for false testimony in case he ducted under the condition that the physician violates his oath, even if he lies only to protect him- must never, because of medical secrecy, convey to 4 Cf., H. Donnedieu de Vabres, 29 RE uE INTER- the judge any confessions or accusations he might NATIONALE DE POLICE CRIMINELLE 25 (1949) and Vouin, Rec. Dalloz, Chronique, 101 (1949). 2 C.P.P., art. 61. SC.P.P., art. 63. 3 CODE DES DEBITS DE BOISSONS ET DES MIESURES C.P.P., art. 62. CoN'=RE L'ALcooLISME, art. 1, §88. C.P.P., arts. 335 and 448. PRIVILEGE AGAINST SELF-INCRIMINATION self from possible prosecutions. 8 Should this witness president and reinforce the account of the charge be allowed to refuse his testimony under the excuse by the "ministre public." that he should not be put under the obligation of Under the authority of the Code of 1808, the accusing himself? That remedy, in the French judicial procedure for the preliminary investiga- opinon, would be worse than the evil. tion, the purpose of which was to determine According to the Criminal Investigation Code of whether sufficient evidence existed to justify a 1808, a full account of the charge had to be made trial of the accused person, was consonant with the by the "minist~re Public" at the beginning of the old inquisitorial type of procedure, that is, it was a trial in the Assize Court and the president was written, secret, and "non contradictoire" pro- allowed to interrogate the accused person only after cedure. This system was greatly modified by the each witness's testimony and on the ground of this law of December 8, 1897. Under this law, the ac- testimony. However, a different practice actually cused person, if he so desires, may be helped during was established. In fact, the account of the charge the investigation period by a barrister who is in- was never made, and the president would in- vited to each interrogatory and who is allowed to terrogate the accused, in front of the jury, about study beforehand the dossier of the procedure. the facts with which he was being charged.9 Moreover, the barrister is permitted to communi- Actually, this interrogatory was a cause of abuses. cate freely, at any time, with his client. Most certainly, the accused person had the possi- This procedure is unanimously viewed, in bilty of not answering, but in this case, the presi- France, as an elementary guarantee of the rights dent alone was speaking, and too often he had the of the defense. Consequently, it has been retained appearance of a prosecutor. The jurisprudence without discussion by the Code of 1958.12 However, slowly reacted, deciding that a sentence was in- one may ask himself very seriously whether the valid when it had been pronouned by an Assize principle of the "instruction contradictoire" is Court the president of which, in the process of the really justified. In fact, to the extent that the trial, had before the proper time spoken out con- accused person participates in the preliminary ex- cerning his feelings with respect to the guilt of the amination, he may, later on, feel embarrassed to accused.0 question its results before the jurisdiction of judg- This solution is quite justified, because the ment. During the preparation of the new Code, it president of the French Assize Court and his two had been offered to make "contradictory" the assessors, since 1941, participate in the jury's de- expert's report carried out in the process of the liberation on the guilt of the accused person. So it preliminary investigation.13 However, this pro- has been maintained by the Penal Procedure Code vision was not incorporated because the barristers of 1958, according to which the president interro- very dearly stated that they would rather not have gates the accused and gets his statements, that, the defense participate in the expert's report in under penalty of invalidity, the president "has order to be able later on to criticize freely the ex- the duty not to show his opinion on guilt.""1 One pert's conclusions. The objection seems right. But, may object that it would have been better to omit if it is accurate, it should be put forward as well completely the accused person interrogatory by the against the very principle of the "instruction con- tradictoire." 8 Cass. Crim., Rec. Dalloz 1918.1.36 (1914). 9 Cf., Vouin, RlvuE DE SciENcE CRnmqELLE 43 '- C.P.P., arts. 114 and 118. (1955). 10Cass. crim., Bull. Crim. No. 476 (1956). 13Cf., Vouin, RvuE DE ScmcE CInmELLE 243 11C.P.P., art. 328. (1956). WALTER CLEMENS [Vol. 51

D. Germany

WALTER CLEMENS

The author is Head Officer in the Ministry of Justice of the State of Hamburg, Germany. Prior to assuming this position, Dr. Clemens served as a member of the Court of Appeals of Hamburg. He has an option to return to the bench at any time. Dr. Clemens has published numerous articles in German legal periodicals.-EmioR.

In the German law of procedure-not only civil charge, i.e., to make a statement ad rem. Rather, and criminal, but also administrative, labour, he is entitled to refuse to answer the charge or keep social, etc.-the rule "nemo tenetur se ipsum accu- silent from the beginning. sare" has been generally accepted for well over one It is a contested question whether the defendant century. It is based on the ethical concept that the who does not take advantage of his privilege of procedural interest in the exploration of the truth silence is under procedural law obligated to tell must stand back behind the higher valued interest the truth. The predominant and correct opinion 2 of the individual to be protected from any coercion of the law teachers answers this question in the to self-incrimination. It is the purpose of this report negative. However, the discussion about the de- to show how this principle is legally ruled in the fendant's duty to tell the truth appears to be use- field of criminal procedure. less anyway, because the CCP provides for no means of forcing him into telling the truth or THE PRIVILEGE OF THE DEFENDANT changing an untrue statement. Privilege of silence And at any time he is allowed to revoke both his preparedness and his refusal to make a statement, This subject matter is covered by section 136 of as well as a former statement, especially a con- of Criminal Procedure (herein- the German Code fession. after called CCP). This section deals only with the interrogation of the defendant by the judge. As the (b) Privilege of silence ad personam expression of a general principle, though, it is held to apply also to his interrogation by the public It appears to be uncontested that under pro- prosecutor and the police.' It reads: cedural law the defendant is not obligated to give (i) At the beginning of the first interrogation the particulars, let alone correct particulars, per- taining to his personal status. The former defendant shall be informed about the nature of 3 4 the charge. He shall be asked if he wants to reply Reichsgericht, however, and some legal theorists to the charge. take the view that such obligation can be deduced from the substantive law, namely section 360(8) (ii) The interrogation shall give the defendant of the German Criminal Code (hereinafter called an opportunity to remove the grounds for sus- CC). This provision penalizes him who before a picion prevailing against him and to put forward competent authority or a competent official makes the facts which speak in his favor. an incorrect declaration or refuses a declaration (iii) During the first interrogation of the suspect with regard to his name, his status, his calling, his an inquiry shall also be made into his personal business, his residence or his nationality. The ques- status. tion whether this provision is applicable to the defendant who has violated it in the course of a (a) Privilege of silence ad ren procedure against himself, should-contrary to the Section 136(i), CCP, points out quite clearly Reichsgericht-be answered in the negative. that the defendant-who incidentally cannot be This follows from the generally accepted legal heard as a witness under German law, and hence 2 See EBERHARD SCsiDXT, op. cit. supra note 1, §136 cannot make a sworn statement in a case against n.11-13. himself-is under no obligation to answer the 3 72 Entscheidungen des Reichsgerichts in Straf- sachen 30 (decisions of the Reichsgericht in Criminal 1 See EBERHARD SciMDT, LEHRKOMMNTAR zuR Matters). STRAFPROZEBORiDNUNG (1957), Vorbemerkung 6 vor 4 See KLEiUIMNECcT-MiiLrR, KOr.NTAP ZUR §133, Teil II (Instructional Commentary of Criminal STRAFPRozEssoRDNuNo, 4 Auflage, Anmerkung 2a zu Procedure, part II, preliminary note no. 6, §133, §136 (Commentary of Criminal Procedure, §136 n.2a, 1957). 4th ed.). 19601 PRIVILEGE AGAINST SELF-INCRIMINATION

concept of the "collision of interests" which says pentance and dangerous criminal character. For that a less valuable interest must stand back when this reason, the Federal Court goes on to say, the it comes into conflict with a higher-valued interest. judge may deny mitigating circumstances or may Beyond dispute, the privilege of silence ad rem as make no allowance for the period of custody under- laid down in section 136(i), CCP, is higher in value gone awaiting trial or may impose a stiffer than the average person's duty to give true par- sentence. ticulars ad personam, established in section 360(8), (ii) The Federal Supreme Court further holds CC, which penalizes the offender only with a fine that the silence or denial of a defendant may con- up to 150 Deutsche Marks or with detention up to stitute or increase the danger- of collusion and so six weeks. Now in practice the enforcement of a may be relevant to the grant of a warrant of arrest. true statement ad personam will in many cases (iii) Finally, the willingly false statement of the violate and even defeat the higher-valued privilege accused may constitute another criminal offense.$ of silence ad rem, because true particulars often For instance if he in his defense declares the sworn throw light upon the identity of the offender and incriminating statement of a witness to be a lie, hence incriminate him ad rem and contrary to the this may incur punishment under section 164, CC statute. The predominant opinion 5 is therefore that (false accusation), or section 185 and following of the defendant has no duty-neither under pro- the Criminal Code (defamation, slander, etc.). cedural nor under substantive law-to answer or to answer correctly in regard to his particulars, and Other aspects of the privilege is not punishable under section 360(8), CC, if he In the absence of a clear legal ruling criminal refuses a declaration ad personam or gives false courts and law teachers have stretched the pro- particulars. tection of the suspect from self-incrimination be- yond his privilege of silence, and have developed (c) Consequences of refusal to answer or offalse state- the principle that the suspect is under no obligation 9 inents. to make an active contribution to his conviction. In application of this principle the Reichsgericht"c As mentioned, the CCP does not attach detri- does not think it the suspect's duty to furnish a mental consequences to the silence or deliberate specimen of writing for the purpose of contriving a falsehood ad rem or ad personam of the defendant. comparison of writings within the meaning of sec- This is not to say, however, that such demeanor tion 93, CCP, and it is generally accepted" that should be always irrelevant in the sphere of sub- the suspect is not under the obligation, laid down stantive law. Adverse consequences of such nature generally in section 94, CCP, to surrender objects are for example the following: which might be of importance as evidence or are (i) Stubborn or insolent denials of the defendant subject to confiscation. can influence sentence, as is justly held by the While not being under an obligation to make an Federal Supreme Court, especially in several de- active contribution to his conviction, as was said cisions rendered in 1951.6 In view of the fact that above, yet the suspect is under an obligation to the defendant is not obligated under the law to maintain a passive attitude in regard to measures make a confession, and any pressure used in this which are instrumental in his conviction, i.e., he connection is prohibited, the Federal Supreme must tolerate them. His consent is not necessary. Court rules it to be inadmissible to assess a more This applies in particular to his bodily examination lenient punishment only on account of a confession, as provided in section 81a, CCP, and to the taking and a more severe punishment only on account of a of a blood-test (with the restriction that detri- denial. Yet it justly takes the view that the court 7 in considering the stubborn denial of a defendant is MONATSScm= sih DEUTscHEs REcnr 532 (1952). free to draw its conclusions as to the degree of his 8 See KLEINKNEcHT-.%iLLER, op. cit. supra note 4, personal guilt, especially as to his lack of re- §136 n.3. 9See BELING, DIE BEWEIsvERBoTE AIs GRENZEN 6 See EBERHARD ScHmuDT, op. cit. supra note 1, §136 DER WAHaHEITSERFORSOHUNG LU STRAFPROZESS (The n.9, and HENKEL, STRAFVERTAHRENSRECHT (Law of Evidential Prohibitions in Criminal Proceedings as Criminal Procedure) 223-24. Limits to the Search for Truth) 11 (1903). 6 1. Entscheidungen des Bundesgerichtshofs in "015 Entscheidungen des Reichsgerichts in Strasfsachen 103, 105 (Decisions of the Federal Supreme Strafsachen 320. Court in Criminal Matters), and MoNAxrsscHaRt FuR 21See BELiG, op. cit. supra note 9, and EBERHARD DSuTscnEs REcHT (German Law Monthly) 440 (1951). SCHMIDT, op. cit. supra note 1, §94 n.17. WALTER CLEMENS [Vol. 51

ments to his health shall not ensue), and further to who prior to it had been heard by the district the taking of pictures and finger-prints, measure- attorney or the police refuses to give evidence, then' ments and other modes of action under section the court is, under section 252, CCP, prohibited 81c, CCP, as well as the seizure of letters and tele- from using his former statements. This applies grams written by him or addressed to him under also to the evidence of a witness who, contrary to section 99, CCP, the search of his dwelling under section 55(ii), CCP, was not advised properly." section 102, CCP, etc. Section 55(i) does not permit the witness to con- ceal from the court a fact endangering himself if THE PRIVILEGE OF THE WITNESS he has not taken advantage of his privilege of is, The privilege of silence silence. Rather is he in such case bound-this in contrast to the defendant-to tell the whole Section 55, CCP, provides: truth; and he will, under the CC, incur punish- (i) Every witness can refuse information as to all ment by giving false evidence. questions the answer to which might incur prose- cution for himself.... Other aspects of the privilege (ii) The witness shall be advised on his privilege The witness can refuse his consent to a bodily to decline to answer questions.Y examination and the taking of blood for the same The question whether this provision applies reasons as he can under section 55(i), CCP, refuse also to the interrogation of the witness by the his testimony. This is provided for in section 81c(i), district attorney or the police is generally answered CCP. He is also not under the obligation to sur- in the affirmative as far as paragraph (i) is con- render objectswhichmighthave evidential value or cerned. It is, however, generally answered in the are subject to confiscation (section 95(ii), CCP). negative respecting paragraph (ii),13 which appears However, the CCP does not go as far as to spare unfortunate but cannot be helped de lege lata. the witness such search or confiscation as might Section 55(i) establishes-other than section 136(i) result in his criminal prosecution. Such action he is for the defendant-no general right of the witness bound to tolerate, just like the suspect. to decline to answer, but only the limited right to THsE PRIVILEGE OF THE EXPERT refuse information on any facts the description of which might incur punishment against himself. Under section 76(i), CCP, the expert is entitled Section 55(i) is the outcome of the already men- to refuse to give his opinion for the same reasons tioned basic principle that nobody is obligated to as entitle a witness to refuse to make a statement, incriminate himself. The provision serves to pro- especially under section 55(i), CCP. So, all that in tect the witness only, not the defendant, so that- this connection was said about the witness will according to the opinion of the Federal Supreme apply here correspondingly. A farther-reaching Court, 4 which, however, is not uncontested-a protection of the expert is not provided for by the review on law does not lie on the defendant's behalf CCP. if the court has failed to advise the witness on his privilege of silence according to section 55(ii) CCP. PRIVILEGES OF OTHER PERSONS The declaration of the witness that he would On behalf of persons other than the suspect, the take advantage of his privilege of silence is just as witness, and the expert, a protection, within the revocable as his declaration that he would make a scope of criminal proceedings, from self-discrimina- statement.', If it is only at the trial that a witness tion is out of the question and therefore not pro- 12An important supplementing provision to §55 is vided for by the CCP. It is true that this statute §56, CCP. It says that the facts on which the witness does grant some other privileges of silence. These grounds his privilege must be supported by evidence rights, however, have no bearing on the concept to the satisfaction of the court, and that the solemn declaration of the witness on oath is sufficient for that of the privilege against self-incrimination, because purpose. their objective is not to afford the privileged per- 13As to details, see EBERHARDT SCMUDT, op. Cit. sons protection from self-incrimination, but pro- supra note 1, §52 n.15. '4 1 Entscheidungen des Bundesgerichtshofs in tection from the incrimination of others, especially Strafsachen 39. near relations, from conflicts of conscience, etc. 1-"63 Entscheidungen des Reichsgerichts in Strafsachen 302 and EBERHIARD SCHMIDT, op. cit. supra 1620 Entscheidungen des Reichsgerichts in note 1, §52 prelim. n.9. Strafsachen 186. PRIVILEGE AGAINST SELF-INCRIMINATION

It is for this reason that the near relations of the self-incrimination. This protection is founded on a suspect have under section 52, CCP, in principle basic principle which has been generally acknowl- been conceded the privilege of silence. Again, under edged for more than a century and has in the Fed- section 55(i), CCP the witness is entitled to refuse eral Republic become an integral part of the to answer if, otherwise, a near relation would be general sense of justice. Therefore it must be main- jeopardized with criminal prosecution. And under tained unrestrictedly, all the more so since nobody, section 53 certain persons who are under the pledge as far as is known, has demanded to narrow or re- of secrecy, e.g., clergymen, defense counsel, law- peal the relevant provisions after the breakdown of yers, doctors, etc., have also been granted the the Nazi-regime. privilege of silence, unless they have been released Within the Federal Republic of Germany, the from their duty to professional discretion. Law of Criminal Procedure is exhaustively covered in the CCP, that is on a federal basis. As a result SLMARY the German Lllnder, according to the provisions of the Basic Law, have no right to enact law pertain- In the light of the foregoing observations, the ing to this matter. Thus, in the absence of a com- following summary of the German law can be petitive sphere of legislative jurisdiction between made: the Bund (Federation) and the Liinder, no prob- The CCP affords the defendant, the witness, lems of dual sovereignty can arise in this area in and the expert a very extensive protection from the Federal Republic of Germany.

Israel

HAIM H. COHN

The author is a member of the Supreme Court of Israel. Previously, Mr. justice Cohn served as Attorney General, Director General of the Ministry of justice and as Minister of justice of Israel. From 1957 to 1959, he was a member of the United Nations Commission on Human Rights and, in 1951, he was Chief Israeli Delegate to the United Nations Conference on International Criminal Jurisdiction. Justice Cohn is a frequent contributor to Hebrew legal periodicals.-EDrroR.

In his classic outline of the history and policy jurists have separated the two component parts of the privilege against self-incrimination, Wigmore of this rule from each other and have laid down the categorically states that the origin of the privilege second part of the rule as a general prohibition of was purely local (17th century-England) and self-incrimination; 4 but the two parts of the rule that "in the other legal systems of the world it have to be read together for a proper understand- had no original place."' It is not so much in order ing of its origin. to disprove that statement, nor to suggest that Both near relatives and wrongdoers are in- the Anglo-American concept of the'privilege competent witnesses. The incompetency of near against self-incrimination may have been in- relatives was based on an interpretation of the fluenced by ancient Middle Eastern institutions, scripture5 to the effect that a man may not be put but rather in order to show how deeply this con- to death either for the sins of his parents or of his cept is entrenched in Israeli legal consciousness, children or because of, that is, on the testimony of, that a short account is given of its origins in the his parents or children. 6 The incompetency of law of ancient Israel. wrongdoers was derived from the scripture, "put The rule that no man may incriminate himself not thine hand with the wicked to be an un- was first distinctly enunciated by Rava, who lived righteous witness,"'7 which was read to mean that in exile in Babylon in the 4th century A.D., 2 in the wicked are bound to be unrighteous witnesses the following terms: "a man is nearest to himself, and therefore are incompetent.8 It appears that and no man calls himself a wrongdoer."3 Later incompetency to testify was not .generally re- 18 WIGmoRE, EvrmoNc §2251 at 304 (3d ed. 1940). 4See, e.g., Rashi (Shlomo Yitzhaki) in his Commen- 2At exactly the same time, Roman law provided tary to Talmud Yebamot 25, 2. specifically for judicial examination of accused persons 5Deuteronomy 24, 16. under torture: ThEODOsiAN CODE BOOK IX Title 35 6Talmud Sanhedrin 27, 2. 7 (De Quaestionibus) at 250 (Pharr Trans.). 8 Exodus 23, 1. 3Talmud Sanhedrin 9, 1. Talmud Sanhedrin 25, 1; Baba Kama 72, 2. HAIM H. COHN [V/ol. 51 garded as a disqualification which one should do his own testimony: although self-incriminating, one's best to remedy, but rather as a welcome this testimony was in his own favour, because its cause to evade the onerous duty of testifying. purpose was to be released from the duty of testify- Not only was the punishment for false testimony ing in another cause. In a different context, the very severe (namely the same punishment to same Rava even reduced the ratio of the prohibi- which the accused had been liable, had he been tion of bribery to the formula, "no man will con- convicted9), but if the accused was convicted of vict himself"-meaning that, having received a a capital offence, "the hands of the witnesses shall bribe, the judge might identify himself with the 14 be first upon him to put him to death."'0 In addi- donor and thus become a judge in his own cause. tion, there may have prevailed then, as there pre- Nor was there anything surprising in the subse- vails today, very good reasons for a potential quent evolution of Rava's rule into a general pro- witness not to get implicated in judicial proceed- hibition of self-incrimination. Indeed, the prior ings. There cannot, at any rate, be any doubt that existence of a rule against self-incrimination, al- potential witnesses tried to disqualify themselves though not yet expressly formulated, may be from testifying by asserting that they had com- deduced from several Mishnaic texts. Thus, a mitted this or the other offence or that they were biblical instance of questioning a person accused leading dissolute lives, so as to bring themselves of crime and obtaining his confession ("And within the category of the "wicked" who had to Joshua said unto Achan: make confession and be presumed to be "unrighteous" witnesses. It tell me now what thou hast done; hide it not from was in order to cure this mischief that Rava laid me. And Achan answered Joshua and said: indeed down his rule: as far as the incompetency of near I have sinned.., and thus and thus have I done" 1 ) relatives was concerned, none is nearer to a man was interpreted in the Mishna as if the confession than he himself, and if his near relatives are in- had been asked for and made only after trial and competent to testify against (or for) him, afortiori conviction and not before, and then only for the must he be incompetent to testify against (or for) purpose of expiating the sin before God so as not himself; but as far as the incompetency of wrong- to be revisited again after death. 6 Later jurists doers is concerned, no man may be heard to assert dismissed this and similar biblical stories simply that he is a wrongdoer so as to disqualify himself as as exceptions to the general rule,'17 although not a a witness. single instance of the application of any such rule 8 The incompetency to testify in one's own favour occurs in the Bible.1 dates from a period earlier by at least two cen- Or, where witnesses to a deed testified that at turies than Rava's time. There is, for instance, the time they had witnessed the deed they were a Mishnaic" text to the effect that the presump- incompetent for reason of their sinfulness, their tion that a woman is violated by the enemy while evidence as to their witnessing the deed was held held as a prisoner cannot be rebutted by the solemn admissible and that as to their incompetency was oath of her husband that "her hand did not move held inadmissible. 9 Or, where a man came forward out of my hand from the day the enemy entered 14Talmud Shabbat 119, 1; Ketubot 105, 2. Jerusalem until he left," because nobody is a wit- IsJoshua 7, 19-20. 16Talmun Sanhedrin 43, 2. ness in his own cause.Y (It was, on the other hand, The confession of sin in repentance before God is, always recognized that a man must be heard in of course, always encouraged and at certain times (the his own defence, albeit not as a witness; and the day of atonement) even prescribed. But these confes- sions have no legal significance and are not admissible Mishnaic law was that even after sentence had in evidence against the confessor or at all; it is a sin been pronounced, proceedings had to be reopened even to remind a man who has confessed before God of up to five times if the accused wished to argue the misdeeds he had confessed to: Maimonides, Teshuva, 7, 8. (For a similar rule, cf. Canons 1755, 1757, Corpus something in his favour, provided it was an argu- Juris Canonici.) ment of substance3) There was, thus, nothing 1'Maimonides, Sanhedrin, 18, 6. "8It is worthy of note that Lilburn, defending him- revolutionary in Rava's ruling that a man is not self against the claim by the judges that he was, al- competent to disqualify himself as a witness by though an accused, under obligation to be examined, relied on the law of God for his refusal to answer (3 9Deuteronomy, 19, 19. HoweAn's STATE TRIALS 1315); but he gave no par- 10 Deuteronomy, 17, 7. ticular text in the scriptures as authority for his proposi- " The Mishna is the earliest part of the Talmud and tion, except Christ's trial by Pilate, and there stood was finally completed about 200 A.D. at once corrected by the judges (See 8 WIGMORE, 1Talmud Ketubot, 27, 2. EVIDENcE §2250 n.103.) 1Talmud Sanhedrin 42, 2. 19Talmud Ketubot 18, 2. PRIVILEGE AGAINST SELF-INCRIMINATION

and said that he had killed a woman's husband, deposited in court, and the thief would not have to 25 not, on the strength of such evi- pay more than once. that woman could 20 dence, be allowed to remarry. In later times, the rule that the confession to a The question thus arose whether a man's state- criminal act would serve as a civil cause of action, ment may be divided so that only the self-in- but would not be admitted as evidence in criminal 26 criminating part would be inadmissible, whereas proceedings, was applied to confessions of arson, 27 7 the neutral part would be admissible in evidence. embezzlement, the taking of usurious interest, In the case of the self-confessed murderer of the and, by analogy, of adultery-the confessing wife woman's husband, for instance, one school held losing her claim to maintenance and other mone- that the confession would be admissible as evi- tary benefits, but not her status as a married dence of the husband's death, but not of his woman, and incurring no liability to be divorced or murder by the confessor; another school held that punished on the strength of her, confession only.A the confession was indivisible and inadmissible An early authority poses the question whether for any purpose. 7 There finally emerged a rule the injunction of the scripture, "Ye shall have one 30 that the neutral part of a confession is admissible manner of law," should not be read to prohibit only for the purpose of corroborating other inde- any distinction between civil and criminal law with pendent evidence: thus, where the issue requiring regard to admissions and confessions; the question proof is the death of a man, the evidence of a wit- is answered in the negative, because the scripture ness to the death may be corroborated by that part itself says in civil causes, He shall pay, but in of the confession of the killer which testifies to the criminal causes, He shall die."' death having occurred; but the killing can never be The reasons underlying the rule against self- proved by the confession of the killer even" where incrimination were at various periods differently corroborated by the evidence of one independent expounded. The earliest version appears to be that witness, because at least two witnesses are required, as the scripture expressly commands, "at the and the confessor is not a witness against himself Y mouth of two witnesses, or three witnesses, shall he At about the time of the Mishna another rule that is worthy of death be put to death, but at the had been laid down to the effect that the admission mouth of one witness he shall not be put to death"2 by a party to a suit that a debt was owed by him -no one may be condemned otherwise than on the was tantamount to the evidence of a hundred wit- evidence of witnesses, as distinguished from the nesses.23 This was well established law when Rava evidence of himself.-" Maimonides adds a reason of first enunciated his rule; and the fact that the con- his own, holding that a court may not inflict cept of the prohibition of self-incrimination had punishment on a man only because of his having existed and been recognized before Rava formu- coinfessed to a crime: "maybe his mind is disturbed lated the rule with regard to the competency of in this matter, or maybe he is one of those melan- witnesses is also apparent from the way in which choly and depressed persons who look forward to the conflicts between valid admissions and invalid dying and are apt to run a sword through their confessions had been solved. Thus, where a man bodies or throw themselves from a roof, and maybe admitted to have raped or seduced a woman, or to such a person comes forward and confesses to a have stolen a chattel, he could not on the strength .crime which he did not commit, so as to be put to of such admission be adjudged to pay a fine or death.'m Another reason given was based on the otherwise be punished but would be held liable to words of the prophet that all souls are the Lord 35 pay damages to the injured party.24 Or, where a God's, hence no admission by which a man may man said to two others, I have stolen a sum of forfeit his life can be of any effect, his life being not money from either the one or the other of you, but 25 2 Talmud Baba Metzia 37, 1. do not know from whom, he was held to be liable 6 Rashba (Shlomo ben Aderet), 13th century. to both; another school held that where a man had 27 Mordehai (Mordehai ben Hillel Ashkenazi), 13th century. admitted to have stolen money, and several persons 28Ritba (Yomtov ben Avraham of Sevilla), 14th came forward, each claiming that the money had century. 2 Maimonides, Ishut, 24, 18, (12th century). been stolen from him, the stolen money was to be 20 Leviticus 24, 22. 20 Talmud Yebamot 25, 1. 31Tossefta Shevuot 3, 7 (completed about 600 A.D.) 21 Talmud Yebamot 25, 2. mDeuteronomy 17, 6. 3 2 7Hameiri on Sanhedrin 1, 1 (13th century). Tossefta Sanhedrin 11, 3. Talmud Gittin 40, 2; Kiddushin 65, 20 et aliunde. u Maimonides, Sanhedrin 18, 6. 24Talmud Ketubot 41, 1. 3- Ezekiel 18, 4. HARUO ABE [Vol. 51

his own but God's to dispose of, whereas his prop- With the emancipation of the Jewish communi- erty is his own, and he may dispose thereof in any 36 ties and the loss of domestic criminal jurisdiction, way he likes, including by the admission of debts. the rule prohibiting all self-incrimination has be- Still another theory propounded was that if con- come obsolete. In the new State of fessions were accorded any probative value in Israel, the criminal proceedings, courts might be inclined to English common law privilege has replaced the overvalue them, as King David did,3 and thus be ancient Jewish law prohibition: self-incrimination guilty of a dereliction of their own fact-finding is no longer regarded as unlawful per se, but is now duty.u Later jurists pointed out the real difference left to the free choice of the individual concerned. between civil admissions and criminal confessions But any suggestion that even the privilege should to be that by an admission, an obligation was cre- now be abolished and a person be made compellable ated which had only to be enforced by the court; whereas the conviction of a criminal offence was to give evidence incriminating himself, would- not in the nature of the enforcement by the court whatever the weight and substance of the reasons of an obligation voluntarily undertaken by a party prompting such reform-find no countenance in but of a creation by the court of the party's Israel. Although no part of a formal constitution, liability.39 the principle is, in the words of Cardozo, "so 36 Radbaz (David ben Zimra), 16th century. rooted in the traditions and conscience of our 372 Samuel 1, 16: "And David said unto him, Thy people as to be ranked as fundamental"; and any blood be upon thy head; for thy mouth hath testified against thee, saying I have slain the Lord's anointed." attempt to further restrict its scope and applica- Joseph Ibn Migash (11th century). tion would be denounced as incompatible with 2 Levush Mordehai (Mordehai Epstein), 19th century. democracy and the rule of law.

apan*

HARUO A3E

The author is a Public Prosecutor of the Ministry of Justice in Tokyo. He has had extensive ex- perience both in the prosecution of criminal cases and in the drafting of penal legislation. Mr. Abe holds a Master of Laws degree from Harvard University and has previously published articles in this Journal. He also has written numerous articles for Japanese legal periodicals and is the co-author of GLuECK HANZAi YosoKuo NYUMON (An Introduction to the Glueck Prediction Method) (Tokyo, 1959) and TAmo, Kozvu, HOSHAKU (Arrest, Detention and Release on Bail) (Yokogawa ed., Tokyo, 1958).-EDiTOR.

HISTORICAL BACKGROUND' Therefore, a brief account of the democratizing It is not easy to realize the true picture of the process of the Japanese system is given. Japanese system designed for protecting human rights against illegal or unfair exercise of investi- HistoricalSketch up to 1889 gating authority without having some preliminary From the 8th century down to the 1860's crim- knowledge about the historical background of the inal justice in Japan was profoundly influenced by Japanese legal system. This is particularly true for Chinese legal tradition. Ancient Chinese laws had an accurate understanding of the concept of the been adopted and modified by feudal precedents privilege against self-incrimination in Japan. and ordinances. The thought and philosophy basic * The author gratefully acknowledges the encourage- to the administration of criminal justice were the ment and advice of Professors Fred E. Inbau and result of a mixture of traditional Japanese morals Claude R. Sowle in preparing this article for publica- tion. The author wants to express his appreciation to under feudalism and the Japanese interpretation of Miss Ruth E. McKee of the American Embassy, Confucian ethics. Tokyo, who has been kind enough to refine the English Since the 1860's the Japanese system of criminal and give him valuable advice on linguistic matters. ',See also Abe, Self-Incrimination-Japan and the justice has experienced two revolutionary changes. United States, 46 J. CRmt. L., C. & P.S. 613 (1956). The first one occurred in the 1870's, following the PRIVILEGE AGAINST SELF-INCRIMINATION

Meiji Restoration, under the influence of ,Euro- tained a limited bill of rights. Under the Imperial pean legal culture, and the second one started in Constitution criminal justice was administered 1946 following the termination of World War II, under the law as enacted by the national legis- under the influence of Anglo-American legal tra- lature. However, Japan was far from being a dition. modern democratic country in that she was In 1868 the Tokugawa Shogunate's Government reigned over and ruled by the Emperor, who was collapsed and was succeeded by the more enlight- regarded as an incarnate deity and the ultimate ened government of the Emperor Meiji. However, source of sovereign power. The principal char- it took time for the new government to sweep away acteristic of this old regime was its compromise all the feudalistic remnants. For example, it was between the ideal of modern constitutionalism not until 1879 that legalized torture was entirely and the traditional principle of government by the abolished. Beating and "Stone Holding" were Emperor. Under such constitutional monarchy common techniques employed to extort confessions the principle of the rule of law could not command from prisoners.2 In the "Stone Holding" torture its full implementation. The civil rights of the the prisoner was forced to sit upon a corrugated subjects were sometimes restricted by the ad- wooden seat, holding heavy flat stones of about 100 ministrative superiority of the Emperor's Govern- pounds each in his lap. Astonishingly enough, the ment. It should be noted also that leading poli- criminal statutes of the 1870's retained the pro- ticians and jurists in those days could not realize visions for torture devices. Moreover, Article 318 fully the significance of the r6le of the bill of rights. of the Revised Criminal Code of 1873 provided Under the Imperial Constitution of 1889, the that "the accused shall be found guilty by the con- Penal Code of 1907 and the Code of Criminal Pro- viction of the court based upon his confession." cedure of 1890 were enacted. The latter was re- This provision, which declared the principle of placed by the Code of Criminal Procedure of 1922. "no conviction without confession," helped to en- Judging from the wording of the new statutes, throne confession as "the queen of evidence." there seemed to be no substantial difference be- In 1876, being urged by Professor Boissonade, tween the modernized criminal justice of Japan who had been invited from France by the Japanese and that of a European country. Criminal justice Government to codify and modernize the legal based on these new laws was strongly influenced systems of Japan, the government changed the by German legal theories and considerably colored wording of Article 318 of the Revised Criminal by the liberalism of the 19th century. For instance, Code to provide that "the accused shall be found the new system adopted the accusatorial system guilty by evidence." 3 This was the first step to- and the principle of trial on evidence. Thus, al- ward reformation. In 1879 the age-old torture though the blueprint of the machinery of criminal system was statutorily abolished. In 1880 the justice under the new system was not too unsatis- Criminal Procedure Law drafted by Professor factory, the practice went along in a direction Boissonade after the model of French law was divergent from that originally expected. The prac- enacted. Thus, under the influence of the European tice of coercing confession became rather common culture of the 19th century, the new Japan among the police; prisoners were kept "incom- gradually paved its way to the modernization of municado" quite often; and the preliminary exam- its legal system. ination, which was kept secret from the public, became a sort of "Star Chamber" affair. Development under the Old Japanese Constitution Rejorm under the new Constitution of 1947 Even prior to World War II Japan had a consti- tutional law which was to some extent based upon The governmental system of Japan underwent a 'he principles of the rule of law and representative fundamental change when the "Constitution of government. The Imperial Constitution of 1889 Japan" came into force in 1947. This occurred dur- provided for the separation of powers and con- ing the occupation of the Allied Powers following the termination of World War II. Under the new 2 For the details of the torture techniques employed in the feudal ages and prewar days in Japan see Abe, Constitution, with the adoption of a revised par- op. cit. supra note 1, at 613-619,' liamentary system, the establishment of the prin- 3 For the event which moved Prof. Boissonade to- ciple of a parliamentary cabinet and the securing of ward such action see Abe, op. cit. supra note 1 at 616 n.14. the complete independence of the judiciary, a HARUO ABE [Vol. 51

democratic government has been established. The chanical warning does not help very much. The Emperor has descended from the position of in- suspects may even take it as an ironical challenge. carnate god and has lost his political power. He is But there is no doubt that such a warning helps now nothing but "the symbol of the State and the to remind the investigators themselves of their unity of the people." Under the new regime the obligations to respect the privilege against self- principle of the rule of law in its pure and perfect incrimination. form has been embodied in the existing legal system In an article published a few years ago the through the constitutional guarantee of funda- author analyzed the concept of the privilege mental human rights and the creation of a system against self-incrimination in Japan from various of judicial review over administrative and legis- angles and pointed out the high disciplinary lative action. With the establishment of the revised effects of this constitutional device.6 The author governmental system under this new Constitution, has no intention of reiterating all the discussions Japan has achieved the appearance of a modern presented in the previous article. In this chapter, democratic state at least from the legal aspect. It therefore, only highlights of the current issues in was against this historical background that the Japan will be given. present code, the Code of Criminal Procedure of 1948, 4 was enacted. The functions of the reformed The Privilege Against Self-Incrimination and the Right to Cross-Examination machinery of criminal justice in Japan can be ap- preciated only in the new light of the postwar It is submitted that Japan was so hurried in regime. adopting the concept of privilege against self-in- As was mentioned before, the former Code of crimination that she overlooked the possible un- Criminal Procedure of 1922 was based in its en- balance between the privilege and the whole tirety on European (particularly German) law, structure of traditional criminal justice. whereas the present Code of Criminal Procedure of Under Anglo-American law it has been well 1948, which was enacted under the new Constitu- settled that once the accused has taken the witness tion of 1947, has largely adopted Anglo-American stand he is assumed to have waived his privilege devices to protect human rights. The new Code is against self-incrimination and may be cross-exam- still based, however, on the Continental tradition ined by the prosecution with respect to what he of law in its general scheme. Thus, it may be said stated in the direct examination. Strangely enough, that the present system of criminal justice in Japanese law did not adopt this rule when it im- Japan is a mixture of Continental (especially ported the concept of the privilege against self- German) and Anglo-American traditions of law. incrimination. Under Japanese law a defendant is incompetent as a witness. This means that he PARTICULAR PROBLEMS CONCERNING THE PRIV- cannot be sworn as a witness even though he may ILEGE AGAINST SELF-INCRIMINATION be willing. He may of course testify without taking IN JAPAN an oath if he does so voluntarily; but since he is not sworn, Is the Privilege Worthy of Retention? he may conceal the truth or make a false statement without risking perjury.7 Thus, he en- Is the privilege against self-incrimination worthy joys an absolute privilege even to refuse to answer of retention? Despite the strong antagonism of the questions propounded by the prosecution or the Japanese criminal investigators toward the privi- judge with regard to the ambiguous points con- lege, most Japanese lawyers seem to agree that tained in his statement; the court is not allowed to the privilege is worthy of retention with or without consider the mere fact that the accused failed to qualifications. Article 38 of the Japanese Constitu- answer by invoking his privilege. Such particular tion proudly declares that "No person shall be status of law strengthens the privilege against self- compelled to testify against himself .... '. Under 4 THE CODE OF CRIINAL PROCEDURE (Law No. the present criminal procedure, a suspect is en- 131, July 10, 1948; enforced on January 1, 1949). titled to be notified of the privilege against self- 6TBE CODE OF CRIMINAL PROCEDURE, art. 198, incrimination before being interrogated.5 Thus, in par. 2: "In the case of questioning mentioned in the preceding paragraph [i.e., *questioning of a suspect starting interrogation most Japanese investi- by a public prosecutor, public prosecutor's assistant gators reluctantly murmur the following proto- officer or judicial police officer], the suspect shall, in advance, be notified that he is not required to make a type phrase: "You don't have to answer, if you statement against his will". don't want to." It is contended that such a me- 6 See Abe, op. cit. supra note 1. 19601 PRIVILEGE AGAINST SELF-INCRIMINATION incrimination into a privilege of silence or even a remedy, he, as the moving party, should reveal his privilege of false statement. Unquestionably this is name. However, the opinion of the court was criti- impairing the spirit of even-handed justice. cized as conservative even by the judiciary on the theory that it required the appellant to make an The Privilege Not to Identify Oneself unnecessary feudalistic courtesy in exercising his In interpreting the concept of the privilege own right to appeal. against self-incrimination, most Japanese judges The second challenge was made in 1952 by the have been taking the position that the privilege same high court in a case where the counsel filed should include the right to withhold one's own an appeal in the names of three communist appel- name and any other information which might lants "Unknowns X, Y and Z". The court dis- identify oneself. Should the name of the accused be missed the appeal as against procedure, holding in regarded as something which tends to incriminate substance (a) that the privilege against self-in- him? Under Anglo-American law this question will crimination might be invoked only at the stage of generally be answered in the negative, except in the main proceedings and with respect to the facts particular cases where falsifying a name constitutes concerning crimes; (b) that the privilege did not the essential part of a crime; in general, a name, authorize the appellants to conceal their names at although it is something of primary importance to the stage of preparing the main proceedings; (c) investigators or the triers, is only a remote fact that the notification of appointment of the counsel which rarely tends to incriminate a person. Under made in the names of "Unknowns X, Y and Z" was Japanese law, however, most judges and progres- illegal; (d) and that the appeal filed by the counsel sive scholars are prone to interpret this privilege as illegally appointed was null-and void being in the accused's extreme favor. They adopt The theory proposed by the high court decision the concept in its logical pureness, eliminating or was confirmed by a recent Supreme Court de- disregarding all the qualifications which have cision. In 1957 the Supreme Court dismissed an been imposed upon the concept in its long histori- appeal taken by communist defendants from a de- cal development under the Anglo-American system. cision of the Tokyo High Court affirming a de- There have been many cases in which accused cision of the Chiba District Court which held persons have not disclosed their names throughout that the notification of appointment of a counsel the proceedings; most judges have taken such prac- undersigned with defendants' jail numbers was tice as a matter of course. null and void. In that case the court held that The first challenge to this practice was made in one's own name should not be regarded as a fact 1951 by the Sapporo High Court in the case of a tending to incriminate oneself concerning which communist appellant who, in"filing the appeal, the accused had the constitutional privilege of' used the signature "Unknown X," which was not non-disclosure." recognized as an ordinary signature required by However, the view advocated by these judicial the rules of criminal procedure. The court dis- precedents has not been very popular among the missed the appeal, holding that in filing an appeal majority of scholars and judges, although it has the appellant was not entitled to use such a mean- been enthusiastically accepted by practical-minded ingless signature as a means of invoking the privi- lawyers and investigators. It appears that in Japan was lege against self-incrimination.' The reasoning the function of the privilege against self-incrimina- on the theory that because he substantially based tion is far-reaching, because most judges are (a) actively asked the appellate court for a judicial still giving the phrase "against himself" in Article 7 Cf., THE PENAL CODE or JAPAN, art. 169: "When a 38 of the Constitution as broad an interpretation as witness, who has been sworn in accordance with law, "against gives false testimony, imprisonment at forced labor for his will on any ground" and (b) allowing not less than three months nor more than 10 years the witness himself to judge the probability of self- shall be imposed." In this connection it may surprise Anglo-American lawyers to learn that in civil actions, incrimination." while the parties can be sworn, should they give false testimony it would not constitute a crime of perjury 9Vol. 5, No. 10 High Courts Crim. Rep. 1653 since the provision concerning that crime applies only (Sapporo High Court 1952). to witnesses, not to parties. Cf., THE JAXaAEsE CODE 10Vol. 11, No. 2 Sup. Ct. Crim. Rep. 804 (Grand oF CivrL PRocEDuRE, arts. 336 et seq., esp. arts. 338 and 339. Bench 1957). 8Vol. 4, No. 5 High Courts Crim. Rep. 512 (Sapporo " Vol. 6, No. 8 Sup. Ct. Crim. Rep. 975 (Grand High Court 1951). Bench 1952). HARUO ABE [Vol. 51

The Statutory Duty of Disclosure in the Quasi- licensed narcotics custodian. 5 This decision ap- Public Relationship pears to have relied on the so-called "waiver by Does the privilege against self-incrimination ex- consent" theory. cuse the statutory duty of disclosure in the quasi- Two years later the Supreme Court again held public relationship? This problem appears to have that the provision of the Narcotics Control Law 12 been of vital importance under American law. It requiring the recording of illegally handled nar- is becoming important also in Japan, where there cotics was constitutional despite Article 38, Par. 1, are"a great number of administrative statutes of the Constitution.6 In this case the Court relied which comprise specific provisions imposing upon upon the reasoning that the law imposing the duty citizens the duty to file reports, to keep records, to of recording was constitutional because such con- disclose records for official inspection, and to trol was required from the standpoint of public answer questions asked by administrative officials health. The theoretical basis of this reasoning ap- with respect to matters of quasi-public impor- pears to be (a) the consideration of the quasi-public tance." It is obvious that the draftsmen of these relationship between the custodian of narcotics statutes were aware of the problem regarding the and the state and (b) the so-called the "generic relationship between the privilege of non-disclosure class of acts" theory as proposed by Wigmore.Y and the statutory duty of disclosure, because some Some other precedents also were based substan- of those provisions requiring administrative reports tially upon the "generic class of acts" theory. For or records contain a precautionary proviso that example, in a case where the issue was the consti- "the prescribed authority of questioning and in- tutionality of the Alien Registration Law requiring spection should not be interpreted as granted for the alien who had illegally entered Japan to apply criminal investigation.' 4 However, because as a for registration, the Supreme Court held that the matter of fact in most cases an administrative in- law imposing the duty did not infringe upon the vestigation may reveal the facts tending to incrim- privilege against self-incrimination because the inate the subject person, this proviso has only ab- law imposed only the duty to apply for registration, stract meaning. not the duty to disclose incriminating facts."' Recently the problem of the constitutionality of There are also a few high court decisions which the provisions requiring incriminating disclosure are based substantially on the same theory and has been discussed in several cases. In 1948, a support the constitutionality of tax law provisions licensed custodian of narcotics, was prosecuted which required incidentally self-incriminating facts. under the Narcotics Control Law for his failure to For example, in a tax law violation case the record an unlawful delivery of narcotics. The Nagoya High Court held that the provision of the Niigata District Court and the Tokyo High Court Corporation Tax Law, which punished the maker held that the defendant was not guilty because, of a falsified income report, did not infringe upon owing to the privilege against self-incrimination, the privilege against self-incrimination although he should not be compelled to record the unlawful the income had been illegally obtained by black delivery of narcotics. The prosecution appealed marketing, because the provision required the re- port on the income itself, not the report on the from the decision of the high court. In 1954 the 19 Supreme Court reversed the decision of high illegal source of the income. court, holding that, despite the privilege against Recently the dilemma between the privilege self-incrimination, the defendant had the duty of against self-incrimination and the quasi-official recording the illegal delivery of narcotics because , 1"Vol. 8, No. 7 Sup. Ct. Crim. Rep. 1151 (2d Petty he had consented to be controlled by the Narcotics Bench 1954). 16Vol. 10, No. 7 Sup. Ct. Crim. Rep. 1173 (Grand Control Law when he applied for a position as a Bench 1956). 178 WIGMORE, EVIDENcE §2259(c) (3d ed. 1940). 12 See, for example, Note, Quasi-Public Records and "8Vol. 10, No. 12 Sup. Ct. Crim. Rep. (Grand Bench Setf-Incrimination, 47 COLum. L. REv. 838 (1947); 1956). Also see Vol. 12, No. 1 Sup. Ct. Crim. Rep. 1 Strasheim, Agreements and Obligation to Waive the (1st Petty Bench 1958) holding that to request under Right Against Self-Incrimination, 32 NEB. L. REv. the threat of punishment the presentation of an alien 577 (1953). registration certificate does not violate art. 38, par. 1 1E.g., Tna INcomE TAx LAw, arts. 63, 64, 70; of the Constitution, even if the request were made by Tna CORPORATION LAw, arts. 48, 49; THE NARcoTics the public officer for the purpose of criminal investiga- CONTROL LAw, arts. 37-50, 53, 72; THE GAS SUPPLY tion of the name and residence of the alien. ENTERPlUsE LAw, arts. 21-29, 46, 47, 58, 59. 19Vol. 4, No. 7 High Courts Crim. Rep. 704 (Nagoya 14See, e.g., THE INHERITANcE TAX LAw, art. 60, High Court 1951); see also Vol. 5, No. 2 High Courts par. 4. Crim. Rep. 160 (Tokyo High Court 1952). 19601 PRIVILEGE AGAINST SELF-INCRIMINATION

duty of disclosure has been highlighted by , series Constitution. The latter supported the constitu- of inferior court decisions concerning the constitu- tionality of the provisions on the theory that the tionality of a sort of "hit and run" provision in necessity of the public welfare might restrain the Article 67, Par. 2, of the Road Traffic Control constitutional privilege against self-incrimination. 20 Law Enforcement Ordinance. Both of these appear to depend upon the theory The Road Traffic Control Law, Article 24, Par. that even a constitutional right may be restrained 1, provides: "In case where death or injury of a by the necessity of public welfare, and the former person or destruction of property has been caused has a slight implication of the "generic class of by the traffic of a vehicle, horse or tram-car, the acts" theory. driver, crew or other worker thereof shall aid the One month later the holdings for constitution- victim and take other necessary measures in ac- ality were rebutted by another decision rendered cordance with the provisions of ordinance." In by the Akita District Court, Yuzawa Branch.24 amplifying this provision of law the Road Traffic This court emphasized the short linkage between Control Law Enforcement Ordinance, Article 67, the required disclosure and the possible prosecu- Par. 2, further provides: "In the event that the tion which may result from the data disclosed and driver of the vehicle, horse or tram-car mentioned declared the unconstitutionality of Article 67, in the preceding paragraph (or the crew or other Par. 2, because of its substantial compulsion to workers thereof in case of an accident of the driver) self-incriminating statement. has taken the measures prescribed by the preceding Recently, however, an eclectic view for consti- paragraph and does not find a police officer on the tutionality was propounded by the Utsunomiya scene of accident, he shall immediately inform a District Court. In a "hit and run" case where the police officer of the police station exercising juris- defendant, after giving emergency aid to two per- diction over the place of the accident about the sons he injured, drove away without reporting to substance of the accident and the measures taken the police, the court held that Article 67, Par. 2 was according to the same paragraph and shall receive constitutional insofar as it could be interpreted to directions from the officer as to whether he may require the defendant to inform the police of such 25 continue to drive or leave the scene of accident." facts as do not directly tend to incriminate him. The first challenge to the constitutionality of Arti- Under this theory it is enough for a driver hitting cle 67, Par. 2, of the Ordinance was made in 1949 a person to inform the police of the fact of the acci- by the Kobe District Court, Amagasaki Branch. In dent without disclosing his name by personally re- a "hit and run" case, where the defendant left an porting or anonymously telephoning or sending a injured pedestrian helpless, the court held that message to the police. It should be noted also that Article 67, Par. 2, of the Ordinance was unconsti- in the course of reasoning the court made the fol- tutional, because it required the defendant to dis- lowing criticism of the traditional justification of close the details of the accident, thereby possibly "hit and run" statutes: It is improper to restrict leading to his incrimination for negligent homi- the privilege of non-disclosure in the name of public 2 cide. 1 In the same year, however, an opposing view welfare; if so, one might totally deny the privilege was expressed by the Kobe District Courtn and in criminal procedure because of the public nature the Kagoshima Summary Court.n The former of the criminal procedure which is designed to ruled that the provisions were constitutional on the maintain welfare and security of the community. ground that they were administrative provisions Thus, until the Supreme Court says its last word aimed at the maintenance of public welfare and 24Decision of the Akita District Court, Yuzawa had nothing directly to do with Article 38 of the Branch, Aug. 19, 1959, 198 HANEI JIHo (Law Reports 2 Times) 20 (1959). 0 THE LAW FOR = ENFoRCEMENT or Tm ROAD 21 Decision of the Utsunomiya District Court, Oct. Tarrlc CONTROL LAW (Cabinet Ordinance No. 261 17, 1959 (not yet published). Also see Decision of the of 1953 with the latest amendment by Cabinet Ordi- Tokyo District Court (the 17th Division), Dec. 14, nance No. 254 of 1958). 1959, which expressed another eclectic view for the 21 Decision of the Kobe District Court, Amagasaki constitutionality of article 67, par. 2, on the theory Branch, May 28, 1959, 189 HANREI Jmo (Law Reports that under the provisions a person may be punished Times) 6 (1959). for his failure to make a required report, but that 2 Decision of the Kobe District Court, June 22, such a report is inadmissible as evidence against him 1959, 195 HANREI Jmo (Law Reports Times) 8 (1959). if the incriminating disclosure is made under the threat 2 Decision of the Kagoshima Summary Court, of punishment. However, this qualification does not July 7, 1959, 195 HANREI Jmo (Law Reports Times) 9 satisfactorily function as a guaranty in cases where the (1959). disclosure is used as a clue. HARUO ABE [Vol. 51

on this complicated problem, the ado over the con- incrimination is psychological rather than logical. stitutionality of "hit and run" provisions will con- The wisdom on which "immunity statutes" are 6 tinue.2 based is very simple. A child who has broken a MAJOR DIFFERENCES BETWEEN AMERICAN AND window in conspiracy with his friends may say to JAPANESE CONCEPTS OF THE PRIVILEGE the angry mother: "I will tell you who did it if you AGAINST SELF-INCRIHINATION don't punish me, Mommy." And if the mother is very anxious to know, she may give immunity to Immunity Statutes and the Privilege Against Self- her child and say: "O.K. Johnny, I won't punish Incrimination you. Then tell me honestly who did it." This is the In the United States "Immunity Statutes" seem psychology of the immunity system. Perhaps to have been one of the most effective weapons of Japanese government lawyers are too austere to investigating authorities in their fight against or- relinquish their prosecuting authority in such a ganized crime that is guarded with the privilege psychological game of give and take. against self-incrimination.? In Japan there have been no remarkable move- Denial of the Privilege Against Self-Incrimination ments toward enactment of such immunity to Public Officials statutes. Since the enactment of the Federal Com- Although Japanese law expects public officials to pulsory Testimony Act of 1954, Japanese lawyers cooperate with criminal investigations,w it does have been aware of the practical significance of the not go so far as to require public officers to waive device. However, it is generally with academic their privilege against self-incrimination. Ethically, interest that most Japanese lawyers regard it. The doubt has been expressed as to the propriety of reason why the Japanese draftsmen are rather permitting a witness to refuse to give testimony apathetic to this seemingly attractive device to con- tending to subject him to subsequent prosecution, trol unbridled use of the privilege against self- especially where a public officer as a witness in- 26 Thus far no Supreme Court decision on this issue vokes the privilege to cloak alleged malfeasance in has been handed down. However, it should be noted that recently the Osaka High Court (Decision of Osaka office. Legally, however, public officials fully High Court, Dec. 22, 1959) reversed the Kobe District enjoy the privilege against self-incrimination, even Court decision, note 21 supra, and held the provisions when they are prosecuted for crimes closely related to be constitutional on the theory that the provision should be interpreted to require the report which helps to their official duties. Strangely enough, there have to identify the accident (e.g., date, place, and an outline been no movements toward legislation designed to of the accident and the name of the victim) but not to require the report concerning the circumstances which restrict the privilege of government officials. Since tend to show negligence on the part of a driver. The there is no particular psychological factor hamper- reasoning of the court complies by and large with the ing such legislation the reason for this legislative view of Assistant Professor Fujiki of Tokyo Uni- versity as expressed in his recent article Dorokotsu hesitance may be attributed to the fact that Torishimari Ho Shiko Rei 67-Jo 2-Ko to Mokuhiken Japanese lawyers have been unfamiliar with this (Art. 67, Par. 2 of the Road Traffic Control Law En- type of legislation. Very few lawyers in Japan have forcement Ordinance and the Right to Non-Disclosure) Vol. 12, No. 8 KaisATsU GAu RONsHu (Police Science been aware of the fact that in some states of the Review) 12 (1959). Judge Urabe expressed an opposing United States there are statutes and precedents view to Mr. Fujiki's in his article Jiko o okoshitaJidosha Untenshn no "Jiko nq Naiyo" Hokoku Gimu to Mokuhiken which, under the threat of dismissal, compel gov- (Duty of Reporting the "Substance of an Accident" by ernment officials to waive their immunity with re- the Driver who Caused the Accident and the Right to gard to matters within the scope of their duties.2 Non-Disclosure, 20 HANuxi HYORON (Law Reports 2 Review 3 (1959). He maintained that the broad word- 8 Cf., THE CODE OF CRMNAL PROCEDURE, art. ing ("Substance of the Accident") does not permit the 239, par. 2, which provides: "When a government or limited interpretation as suggested by Mr. Fujiki and public official in exercise of his function believes that suggested a legislative specification of the wording. It an offense has been committed, he must lodge an ac- should be noted that a legislative change is contem- cusation." plated in accordance with the view of Judge Urabe. 2 See, e.g., Note, 64 HARv. L. REv. 987 (1951); Note, ee also Tamiya, Jidosha Jiko no Hokoku Gimu to Claim of Immunity from Self-Incrimination by Public Mokuhiken (Dty of Reporting an Auto Accident and Officers, 64 U.S.L. REv. 561 (1930); NEW Yoas CoN- the Right to Non-Disclosure), 189 JURIsT 24 (1959), a sTrrooN, art. 1, §6 (as amended and effective Jan. 1, useful comment on the recent decisions on this subject 1939); Canteline v. McClellan, 282 N.Y. 166, 25 N.E.2d with specific reference to American cases on "hit and 972 (1940); Christal v. Police Comm'n 33 Cal. App. 2d run" statutes. 564, 92 P.2d 416 (1939); Goldway v. Board of Higher 27 See, e.g., Comment, Immunity from Self-Incrimina- Educ., 37 N.Y.S.2d 34 (1942); Drury v. Hurley, 339 tion Under the Federal Compulsory Testimony Act, Ill. App. 33, 88 N.E.2d 728 (1949); LA REv. STAT., 46 J. CRim. L., C. & P.S. 679 (1956). tit.3 3, §2426 (1950). 19601 PRIVILEGE AGAINST SELF-INCRIMINATION

However, it is foreseen that the day will come when However, most Japanese lawyers will doubt the the draftsmen of Japanese law will be fully aware reason why this type of disclosure should be cov- of the possibility of this type of legislation and start ered by the privilege against self-incrimination. to move toward it. Experience shows that the admission of such type of physical evidence has the most pleasing effect of Non-Testimonial Disclosures and the Privilege killing the need for confession and of stimulating ° Against Self-Incrimination scientific investigation. Again a more flexible ap- Should the privilege against self-incrimination proach under the Japanese law will be noted. excuse a person from producing a writing in his REEXAMINATION OF DUALISM OF STATE AND possession? If so, to what extent? Anglo-American FEDERAL JURISDICTIONs AFFECTING THE law has answered the question in the affirmative, SCOPE OF THE PRIVILEGE although it has been making continuous efforts to limit the scope of the privilege, which has been In the eyes of Japanese lawyers the rule of improperly far-reaching. In the course of these dualism of state and federal jurisdictions as affect- efforts, official documents and corporation records ing the privilege against self-incrimination appears to be somewhat strange. The American federal rule have been removed from the protection of the 4 privilege on the basis of the "personal nature of "dualism" established by the Murdock case and elaborated by the FeldmaiP5 case "cuts into the doctrine" or "public or quasi-public record doc- 3 6 trine." very substance of the Fifth Amendment" and is "subversive of the spirit and letter of the However, most Japanese lawyers will doubt the Bill of rationale of the Anglo-American rule that a person Rights."E shall be protected from the compulsory production - Let us ask, "What is the rationale of the dualism of writing just as a person shall be protected from in the privilege against self-incrimination?" Wig- the coercive taking of evidential utterance from more's view was that (a) the privilege is not sub- his lips. Once an incriminating piece of information stantially curtailed by the dualism because the has been embodied voluntarily in documentary danger of prosecution is remote and (b) the diffi- material, the compulsory production of the ma- culty of ascertaining what is criminal in another terial jurisdiction should make a different rule imprac- will be far less painful to the person who has s given the information than the compulsory taking tical.3 Are these two corner stones of the dualism of the information from his lips. still sound today? The world has become much Under Japanese law, the scope of compulsory narrower than in the days of Wigmore. Not only search and seizure is interpreted to cover "any the world but also the universe is becoming articles" whatsoever which the court believes the privilege that it was originally designed to prohibit should be used as evidence or liable to confisca- "the practice of extracting incriminating statements from accused persons." INBAU, SELF-INcRIBINATION: tion." The phrase "any articles" has been inter- WA CAN AN AccusED PERSON BE CoMPELLED TO Do? preted to comprise any sort of real or documentary 5 (1950). evidence which will be relevant and admissible in a "Under the Japanese law the problem of the ad- missibility of physical evidence is answered expressly court. Japanese law has no rule excluding docu- in the affirmative by the provisions concerning "evi- mentary evidence simply because of its self-incrim- dence by inspection (kensho)" and "expert evidence (kantei)." See ThE JAPANEsE CODE OF CRIMINAL inating nature. The requirement of a warrant or an PROtEDURE, arts. 128 elseq., especially art.'218, par. 2, order of the court is a guaranty against a possible providing for the taking of finger prints, foot prints, misuse of the system of compulsory production of or photographs of the accused, and art. 167 providing for the possibility of confining the accused in a certain articles. place if necessary for an expert examination, e.g. for In the United States the problem of compulsory an insanity test. To prevent misuse, all these means of compulsory taking of physical evidence are subject to taking of physical evidence, such as blood tests, judicial control in the form of warrants or orders of the alcoholic intoxication tests, etc., has been much dis- court. In the Japanese courts physical evidence taken cussed also under the topic of self-incrimination." by these means is evaluated as the most reliable and scientific basis of fact finding. The witnesses lie often, 30The points made in this and the following chapter but4 the things and circumstances do not. appeared in substantially the same form in Abe, op. cit. 1 United States v. Murdock, 284 U.S. 141 (1931). supra note 1, at 627-29. 3"Feldman v. United States, 322 U.S. 487 (1944). 3 Cf., THE CoDE or CzRnuNA PROCEDuRE, arts. 99, 3"Id. at 498 (dissenting opinion of Black, J.). 102 and 218. 37 McAllister, 3., in In re Watson, 293 Mich. 263, "2It should be noted here that Professor Inbau con- 284, 291 N.W. 652, 661 (1940). cluded from his historical survey of the development of "Wi GoRE, EVIDENCE §2258 (3d ed. 1940). HARUO ABE [Vol. 51

smaller. The technique of communication has made that the two cornerstones of the dualism have lost remarkable progress. Testimony in a court may be their significance, is there any other reason for in- communicated to every corner of the country in a sisting on dualism? few hours through a network of mass-media, such It was noteworthy that the DiCarlo"4 and the as radio, television and newspapers. The police Adams 4' cases proceeded a few steps toward a network also will be quick enough to detect new realistic solution of this problem, but did not reach tes- pieces of evidence against the witness using his it. tim.ny in a court as a clue. On this new basis a A fallacy of dualism appears most clearly in the in a federal court state witness might be prosecuted application of immunity statutes. It is extremely such circumstances, it is not and vice versa. Under unreasonable that a witness should be compelled to practical to say that a state and a federal jurisdic- testify under an immunity statute in one jurisdic- tion are foreign to each other, as much the same while risking prosecution in another jurisdic- relation as between "China" or "Peru" and the tion a seem- United States ; nor is it proper for a federal court tion. This means trapping a person with to pretend to be "blind" to the laws and facts of a ingly lawful device. A practical and realistic step state jurisdiction and vice versa. The development toward the elimination of this fallacy is urgently of legal publications and the possibility of using desired. legal experts are enabling state courts to know the 40 United States v. DiCarlo, 102 F. Supp. 597 law of a federal jurisdiction and vice versa. Now (N.D. Ohio 1952). -Id., §2258. 41Adams v. Maryland, 347 U.S. 179 (1954).

G. Norway

ANDERS BRATHOLM The author is Professor of Law in the University of Oslo. As a postgraduate student, Professor Bratholm studied criminology and law at New York University. During the spring term of 1960, he was a Visiting Professor in the Law School of the University of Pennsylvania. Professor Bratholm is the author of PAAGRIPELSE OG VARETERTsEESGSEL (Arrest and Detention Before Trial) (Oslo 1957), as well as numerous articles.-EDITOR. No precise doctrine regarding self-incrimination When the question arises as to what extent the is to be found in Norwegian or Scandinavian law accused in other ways has a duty to cooperate with as is the case in Anglo-Saxon law, but certain of the the solution of the case in view, the legal position principles which are derived from the Anglo- in Norway (and in the other Scandinavian coun- Saxon doctrine are applicable in the Scandinavian tries) is very dubious in many respects. Thus the countries. Thus a person who is charged or ac- extent to which an accused person may be sub- cused has no duty to give a statement (apart from jected to various forms of frisking, tests, and so on, his name, position and address) to the police or to is somewhat vague. the court, and he can make a false statement with- According to the Norwegian Criminal Procedure out being liable to punishment.' He cannot confirm Act it is permitted to search a person who on his statement by oath. reasonable grounds is suspected of having com- A witness, as a rule, has a duty to give a state- mitted an act for which the maximum statutory is reason to ment in court and to confirm his statement by penalty is higher than a fine, if there believe that the search will lead to the discovery of oath. If the questioning implies that the witness is evidence against him.3 suspected of an offense, he can demand to be Although the Criminal Procedure Act has no charged, and then he has no duty to answer. Nor clear provisions on the point, it is assumed that has he a duty to answer if his answer will expose the right to search also includes an examination of him to the danger of losing the respect of his 2 the body of the accused. The aim for such an exam- fellow citizens. ination may be to find scratches, bites, punctures I PENAL CODE or 1902, §167. caused by a hypodermic needle, and the like, on the 2 CRaINAL PROCEDURE AcT OF 1887 (hereinafter called CPA), §177. See also PENAL CODE, §167. 3 CPA, §221. 19601 PRIVILEGE AGAINST SELF-INCRIMINATION

4 could not be compelled to submit to gynecological body of the accused. It is characteristic of this 7 examination that it only has to do with the eternal examination. condition of the body and that it does not exceed Physical examination of the accused can involve the process of observation. a fourth type of evidence, the so-called evidence of The legal position is more doubtful when it identity (fingerprints, photographs, confronting comes to the question of the admissibility of per- with witnesses, handwriting tests, etc.). In this forming an operation or the like on the accused, in field, too, we have no clear legal provisions in order to obtain evidence against him. Examples of Norway. However, the question whether an ac- such actions are gynecological examinations, cused person is bound to give fingerprints did stomach pumping, blood tests, etc. As regards come before the Supreme Court in 1929 and 1935, blood tests, there is a clear authority in the motor- and in both cases the court decided that the accused ing laws permitting the testing of a person whom was so bound." The court reached its decisions there is good reason to suspect of having driven a mainly by analogous reasoning, recalling the pro- motor vehicle in an intoxicated condition. 5 (A vision in the criminal law that an accused person is 9 person who has, when driving, more than 0.5 bound to give his name, position and address. promille (per thousand) concentration of alcohol in With regard to the other forms of evidence of the blood is considered as intoxicated' and is identity, there is no legal precedent, but it may usually sentenced to at least 21 days imprison- surely be assumed that the accused is also bound ment.) The general opinion in Norway is that the to permit his photograph to be taken, submit to 01 provision in respect of blood tests in the motoring confrontation, etc. In practice accused persons do laws is practical and important to the clearing up not generally protest against partaking of such of the case, and that it does not constitute any un- examinations. reasonable invasion of the rights of the person Finally another type of investigation will be charged. dealt with: The use of the lie-detector, narco- Corresponding provisions in respect of blood analysis and similar chemical or technical media is to solve the question of guilt. In tests are found in Danish and Swedish law. whose purpose hitherto been em- It is not clear to what extent the police have the Norway these measures have not ployed during investigations. Moreover, it is right to take a blood test from persons other than probably not permissible to employ them, even if those who are suspected of having driven a motor the accused person consents to the measure. condition. In practice, vehicle in an intoxicated In recent years the question of the permissi- a however, a blood test is sometimes taken in such bility of such measures has been discussed at some case, and there has been, as far as I know, no occa- length by professional men in the Scandinavian sion when the person involved has opposed the test. countries," and it seems to be the general view that At any rate, the courts have not been faced with the measures should be entirely excluded from the the problem of the legality of such an examination system of criminal law, at any rate until they undertaken against the wishes of the person tested. have reached a higher degree of reliability- than is Furthermore, it is doubtful how far an accused the case to day. person may be subjected to similar forms of cor- It must be added that narcoanalysis has been poral examination or operation. undertaken in a number of cases in Denmark and One might perhaps say that it is the current Nor- in Sweden in connection with psychiatric observa- wegian law that operations or the like on an accused tion of the accused, but the purpose has not been person, in order to obtain evidence against him, to bring to light whether the accused has com- can only be undertaken against his will when au- mitted the crirqe he was suspected of but rather to thority for the procedure exists in the written law. gain information concerning his state of mind. The

In this connection it can be mentioned that some 7 Norsk Retstidende (Nor. Law Rep.) 204 (1936). years ago the Supreme Court decided that a woman 8 Norsk Retstidende (Nor. Law Rep.) 221 (1929) suspected of having undergone an illegal abortion and 1088 (1935). 9 PENAL CODE, §333. 4 10See BRATHoLm, PAAmGRPELSE OG VARETEKTS- 1t is generally held that CPA, §221, authorizes FENGSEL (Arrest and Detention Before Trial) 258 such an examination of the body of the accused. (Oslo 1957). 5 THE LAW oF MOTOR VEmCLES oF 1926, §17. 1 See references in BRATHOLn, op. cit. supra note 10, 6 Ibid. at 258 n.39. ANDERS BRATHOLM [Vol. 51 accused has, of course, in all cases consented to the in practice. Most persons, when charged, consent narcoanalysis. to the inquiry desired by the police, because they It may be mentioned that in Norway there is no believe that it is their duty to cooperate. Many, exclusionary rule, and there is reason to believe too, are anxious to avoid the aggravation of sus- that evidence obtained by illegal means in most picion that would be caused by refusal to submit to cases will be admitted. investigation. As contact with Anglo-Saxon law In conclusion one may say that although in improves, there is good reason to believe that more Norway-as in the other Scandinavian lands- and more persons will become aware of the prob- there is no doctrine corresponding to that in lem of self-incrimination, and thus more attention on self-incrimination, there is in Anglo-Saxon law will be devoted to it in theory and in legislation. these countries a limit to What the accused may be In that connection it can be mentioned that a subjected to. But at present it is far from clear in committee was appointed a couple of years ago many types of cases where the line should be with the responsibility of drafting a new criminal drawn. The absence of a fixed doctrine has brought 12 it about that the accused-and in some cases procedure act for Norway. counsel as well-are not aware of the possible 1 The chairman of the committee is Professor Johs. rights of a charged person in this respect, and this Andenaes, Director of the Institute of Criminology and again leads to the fact that problems seldom arise Criminal Law, Oslo.