dissenting (solely as to the defendant Halperin).
Except as to Halperin, I concur. I would grant him a new trial. His plight presents a most important problem of principle relative to the constitutional privilege against compelling an accused person to be a witness against himself. I disagree with my colleagues’ solution of that problem.
Before a grand jury,1 Halperin had refused to answer questions, on the basis of his anti-self-incrimination privilege. No one doubts that he then properly asserted the privilege. At his subsequent trial, he took the stand and, on direct examination, answered the same or similar questions put to him by his lawyer. The prosecutor, on cross-examination, then asked Halperin whether, at the grand jury hearing, he had not refused to reply to such questions. Over Halperin’s objections, the trial judge required Halperin to admit that he had. Later the trial judge instructed the jury *572that that refusal before the grand jury-must not be considered as proof of his guilt, but that the jury might properly consider it as affecting the credibility of his other testimony at the trial. Judge Medina’s opinion—citing Raffel v. United States, 1926, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054, and decisions of this court based on Raffel—holds that the trial judge did not err in over-ruling those objections and in giving this (Charge. I cannot agree.
At first glance, Raffel may seem to sustain my colleagues’ ruling. But I disagree with that ruling, because I think (1) Raffel was wrong and that the Supreme Court has over-ruled it, (2) Raffel does not apply to the facts here, and (3) in any event, the very recent trend of Supreme Court decisions concerning the privilege requires our court no longer to follow Raffel.
1. In Raffel, on a first trial, a government agent testified to an admission by the accused, who relying on his privilege, did not offer himself as a witness. The jury did not reach a verdict. On a second trial, the government agent gave similar testimony. The accused now took the stand and denied making the admission. Over objection, he was compelled to testify that, on advice of counsel, he had not testified at the first trial. The Supreme Court held this was not error, despite the statute (now 18 U.S.C.A. § 3481) which provides that an accused, at his own request, may be a witness at his trial but that “his failure to make such a request shall not create any presumption against him.” The Court said that Raff el’s previous silence constituted some evidence of inconsistency with his denial, at the second trial, of the admission to the agent, and therefore bore on the credibility of that denial. The Court concluded that to require Raffel to tell the jury of his silence at the first trial did not violate his privilege against self-incrimination, since, by electing to testify at the second trial, he completely waived the privilege.2 *****8
In 1926, soon after the Raffel decision, Hinton, a noted and sagacious commentator, severely criticized it as follows:3 “It may be easy enough as a matter of theory to distinguish between the pro*573hibited use of the defendant’s former silence as an implied admission to prove guilt and the negative use of the same fact for the sole purpose of discrediting his testimony, but is it possible to make it work in practice? In the case of a mere witness it is undoubtedly permissible to cross-examine as to any inconsistency between his present testimony and his former statements or conduct. His former silence may discredit his present testimony, and it is assumed that a jury can be made to understand that reasons for doubting or refusing to credit his testimony are not to be taken as proof of a contrary state of fact, just as prior contradictory statements may be used to discredit without violating the hearsay rule. In such a case the prior statement is not received to prove the truth of the facts therein asserted, but merely to detract from the credit of the later statement. But where the defendant is the witness such a refinement seems impracticable, if not impossible. In the ordinary case where a defendant has made express or implied admissions and later testifies, such admissions may be used both to prove his guilt and to disprove his testimony, and hence no difficulty arises. The jury are entitled to make all logical uses of the evidence. In the actual case (i. e. Raff el’s case) the silence of the defendant at the first trial must be taken as an implied admission of the truth of the adverse testimony, otherwise there would be no inconsistency with his present testimony and no discredit. But the federal statute, which certainly applied when he failed to testify, clearly prohibits its use to sustain the charge. It is doubtful whether a trained judge could actually make a purely negative use of such an implied admission. If he thought the inconsistency sufficient to refuse credit to the testimony, it is unlikely that he could avoid being influenced by it in his final conclusion. Certainly it is inconceivable that the average untrained jury could successfully perform such a feat of mental gymnastics. If it is practically impossible to limit the effect of the evidence, then it would seem that the policy of the statute ought to exclude it altogether.”
Hinton’s analysis may be restated thus: (a) Impeachment of a witness’ testimony by proof of an earlier statement is justified only where there is “self-contradiction,” “a real inconsistency” between that earlier statement and that testimony. 3 Wigmore, Evidence, Section 1040. (b) An earlier inconsistent statement may be implied, i. e. derived from the witness’ earlier silence: His “failure to assert a fact when it would have been natural to assert it, amounts, in effect, to an assertion of the non-existence of the fact.” 3 Wigmore, Section 1042. (c) The earlier silence of the accused may, then, properly be used to impeach his sworn statement, at the trial, of his innocence, only if the earlier silence amounted to an implied admission of his guilt, (d) But the Fifth Amendment and the federal statute (now 18 U.S.C. § 3481) forbid the proof of such silence, as inferred evidence of guilt, when that silence rested on the exercise of the constitutional privilege.
Hinton was surely correct in saying that a jury will not be able to heed the judge’s cautionary charge that such evidence must be given effect solely in its bearing on the credibility of the accused. Like many other sorts of cautionary instructions, it asks the jury to do the well-nigh impossible. In Nash v. United States, 2 Cir., 54 F.2d 1006, 1007, Judge Learned Hand wrote of “the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else”; in United States v. Gottfried, 2 Cir., 165 F.2d 360, 367, he said, “nobody can indeed fail to doubt whether the caution is effective * * * ”; see also his remarks in United States v. Delli Paoli, 2 Cir., 229 F.2d 319. In United States v. Antonelli Fireworks Co., 2 Cir., 155 F.2d 631, 656, dissenting opinion, it was noted that a cautionary instruction may emphasize the very matter the jury is told to forget, “as in the story, by Mark Twain, of the boy told to stand in a corner and not think of a *574white elephant.” Mr. Justice Jackson, concurring in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790, observed: “The naive assumption that prejudicial effects can be overcome by instructions to the jury * * *, all practicing lawyers know to be unmitigated fiction.” It “is well enough,” said Wigmore (8 Wigmore, p. 416), “to contrive artificial fictions for use by lawyers, but to attempt to enlist the layman in the process of nullifying his own reasoning powers is merely futile, and tends towards confusion and disrespect for the law’s reasonableness.” In United States v. Paoli, supra, Judge Hand referred to such an instruction as a “placebo.” Fletcher, Morals and Medicine (1952) 51-52, calls a “placebo” or “bread pill” a “medicinal lie” which undermines “a truly moral relationship between physician and patient”; it “encourages the idea * * * that drugs will cure most ailments and this serves to extend the patent-medicine evil.” Similarly, such a cautionary instruction is a kind of “judicial lie”: It undermines a moral relationship between the courts, the jurors, and the public; like any other judicial deception, it damages the decent judicial administration of justice.
Hinton’s criticism of Raffel, made in 1926, has even greater pertinence today. For in recent years the public, from which jurors are drawn, has “been told in every headline, on the authority of prominent legislators, that silence (based on the constitutional privilege) means guilt”;4 in Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 690, 99 L.Ed. 997, the Court noted that “in these times a stigma may somehow result from a witness’ reliance on the Self-Incrimination Clause * * Several state courts have disagreed sharply with the reasoning on which Raffel rests and with its conclusion, see e. g., State v. Conway, 348 Mo. 580, 585-589, 154 S.W.2d 128.
2. In 1943, some seventeen years after Raffel, the Supreme Court, in deciding Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 553, 87 L.Ed. 704, pretty obviously took cognizance of the criticisms levelled at Raffel. In Johnson, the defendant, indicted for wilful evasion of payment of income taxes for the years 1936 and 1937, at his trial testified on his own behalf. When the prosecutor, on cross-examination, asked a question about defendant’s income, from illegal sources, in 1938, the defendant asserted his Constitutional privilege; the trial judge ruled that defendant need not answer that particular question, and defendant then refused to do so. The prosecutor, in his summation, commented on this refusal to answer concerning the 1938 income as showing the falsity of defendant’s testimony about his 1936 and 1937 income. The trial judge charged the jury that defendant’s refusal to answer the particular question concerning 1938, “may only be considered by you in testing his credibility.” The Supreme Court said that, although the attempted inquiry as to 1938 called for evidence which was undeniably relevant, yet it was error for the prosecutor or the trial judge to refer to defendant’s refusal to answer the question, even for the limited purpose of impeaching his credibility. The Court said: “The ruling of the court gave the petitioner the choice between testifying and refusing to testify as to his 1938 income. An accused having the assurance of the court that his claim of privilege would be granted might well be entrapped if his assertion of the privilege could then be used against him. His real choice might then be quite different from his apparent one. In this case it would lie between protection against an indictment for 1938 and the use of his claim of privilege as evidence that he did in fact receive the income during the last two months of 1937. Elementary fairness requires that an accused should not be misled on that score. If advised by the court that his claim of privilege though granted would be employed against him, he well might never claim it. If he receives assurance that it will be granted if claimed, or if it is *575claimed and granted outright, he has every right to expect that the ruling is made in good faith and that the rule against comment will be observed. * * The problem here is * * * whether a procedure will be approved which deprives an accused on facts such as these of an intelligent choice between claiming or waiving his privilege. Knowledge that a failure to testify though permitted by the court would be submitted to a jury might seriously affect that choice. If the accused makes the choice without that knowledge, he may well be misled on one of the most important decisions in his defense.” 5
In so ruling, the Supreme Court, in effect, I think, overruled Raffel. The sole difference between the Raffel and Johnson cases is this: In Raffel, the privilege had been successfully asserted in a previous trial; in Johnson, the successful assertion of the privilege occurred in the same trial. This difference seems to me so impalpable that we cannot reasonably say, I think, that the Johnson case kept the Raffel decision alive. Significantly, the government in its brief in the instant case does not refer to the Johnson case, although defendant had made much of it in his brief.
3. In United States v. Klinger, 2 Cir., 136 F.2d 677, this court held the Johnson case rationale inapplicable to facts like those here; and it is true that Halperin’s case, like Klinger’s, differs from both Johnson and Raffel in this respect: Halperin (like Klinger) asserted his privilege not at a previous trial or at the same trial but pre-trial, i. e. before indictment, in the grand jury’s presence. However, the rationale of the Johnson decision becomes stronger, not weaker, in such circumstances. For a man in a grand jury hearing may have far better reasons for preserving silence: There he is not confronted with the adverse witnesses, has no opportunity to cross-examine them, cannot object to the reception of evidence which would be incompetent at a trial,6 is unable to call witnesses on his behalf, has no counsel to advise him, must submit to a secret and ex parte examination “without the presence and control of a judge or any other impartial official, to * * * intervene * * * to protect” him.7 As Judge Learned Hand said in 1953, “Save for torture, it would be hard to find a more effective tool of tyranny than (this) power of unlimited and unchecked ex parte examination.” 8
Accordingly, even apart from the effect of the Johnson case, the Raffel doctrine is inapposite here: In Raffel, the defendant at his first trial had the same opportunity as at his second trial to confront and cross-examine the adverse witnesses, to be assisted by counsel, to object to incompetent evidence, to summon witnesses on his behalf, etc., etc. Nor should we forget that the constitutional privilege had its English origin in protests against questioning persons, ex parte and in secret, before they had been formally charged with any crime.9 It is noteworthy that the Supreme Court has never applied the Raffel doctrine to a case where the previous exercise of the privilege occurred in a grand jury hearing.
If it be urged that the foregoing lacks significance here because Halperin is himself a lawyer, the short answer is the wise old adage that a lawyer who acts for himself has a fool for a client. Moreover, Halperin, on redirect, explained as follows why he had availed himself of the privilege in the Grand Jury hearing: Schopick, Davis and Hoffman had told him they intended to “make a deal for *576immunity” and would then testify at the Grand Jury hearing that he was implicated; they threatened that, if he testified otherwise, they would see that he was indicted for perjury. On advice of his lawyer, he relied on his privilege because of these threats, and because before the grand jury, he was not represented by counsel, and also would have no opportunity to cross-examine those who had threatened him in order to show they were lying.
By requiring Halperin to tell the jury that he had previously exercised his privilege, the trial judge put him in a predicament where he was virtually compelled to give such an explanation, since, if unexplained, it would count heavily against him. It will not do, then, to say that his opportunity to give the jury such an explanation cured the error. On the contrary, the need to explain served to illuminate the error; for the consequence of the error was that, in effect, the propriety of the previous exercise of his privilege turned on the jury’s belief in his explanation. No one who legitimately exercises the constitutional privilege ought to be so placed that he must subsequently justify it to a jury.
In Klinger, 2 Cir., 136 F.2d 677, this court reasoned thus: (1) In Johnson, the Supreme Court said that it would be error to receive evidence of the defendant’s assertion of his privilege at the same trial, unless the trial judge, when ruling that the defendant could remain silent in answer to a particular question, warned him that his silence could be used to impeach his credibility. (2) But, said this court, it would be irrational to require such a specific warning to a man asserting the privilege in a grand jury inquiry, since a witness before a grand jury need not even be warned that he has the anti-self-incrimination privilege.10 A sufficient answer is that, in Johnson, the Supreme Court did not rule that the defendant must be warned that his successful assertion of the privilege might be used against him, but that, absent such a specific warning, the exercise of the privilege could not later be used against him. So, in the instant case, the vice is that, absent such a warning at the time when he exercised his privilege at the grand jury hearing, the defendant was compelled at the trial to testify that he had thus previously exercised it.
Were this an ordinary civil case, involving no constitutional issue, I would, although disagreeing with them, feel constrained to follow our fairly recent Klinger decision, and our subsequent decision in United States v. Gottfried, 2 Cir., 165 F.2d 360, 367—which cited and relied on Klinger—as binding precedents in this circuit. But—for reasons I have stated in detail in United States v. Scully, 2 Cir., 225 F.2d 113, 118-119 —I do not feel similarly constrained by our circuit’s precedents, favorable to the government, in a criminal case, when I think them unjust or unreasonable.11 Consequently, I would not here follow Klinger or Gottfried.
4. Even if I thought the Supreme Court had not in Johnson over-ruled Raffel, and even if I thought Raffel applied here, nevertheless I would disregard Raffel. For as this court has heretofore said, an inferior court like ours should follow, not resist, a new pronounced doctrinal trend in Supreme Court decisions when considering the precedential force of older Supreme Court decisions. See Perkins v. Endicott Johnson Corp., 2 Cir., 128 F.2d 208, 217-218; Judge Learned Hand in Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 636; Judge Parker in Barnette v. *577West Virginia State Board of Education, D.C., 47 F.Supp. 251, 252-253.
When the Supreme Court decided Raffel, that Court, some other courts, and many commentators—following Bontham who decried all the privileges against testifying—were manifesting a marked hostility to the constitutional privilege and were severely modifying its scope. See, e. g., A. L. I. Model Code of Evidence (1942) p. 130; 12 Cornell L.Q. (1927) 216; United States v. St. Pierre, 2 Cir., 132 F.2d 837, at page 847, 147 A.L.R. 240, dissenting opinion. But on May 23, 1955, the Supreme Court far more generously construed the pertinent part ■of the Fifth Amendment. See Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964; Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997; Bart v. United States, 349 U.S. 219, 75 S.Ct. 712, 99 L.Ed. 1016. In Quinn [349 U.S. 155, 75 S.Ct. 673], the Court said that the privilege, incorporated in the federal Bill of Rights in 1791, was as the Court had said in Twining v. State of New Jersey, 211 U.S. 78, 91, 29 S.Ct. 14, 53 L.Ed. 97 “ ‘generally regarded then, as now, as a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded, or tyrannical prosecutions.’ ” The Court added, “to apply the privilege narrowly or begrudgingly— to treat it as an historical relic, at most merely to be tolerated—is to ignore its development and purpose.” In Emspak [349 U.S. 190, 75 S.Ct. 690] the court, referring to the “Self-Incrimination Clause,” spoke of the “great right which the Clause was intended to secure * * 12
Another manifestation of a more generous treatment of the privilege appears in a recent opinion by Mr. Justice Harlan: In United States v. Noto, 2 Cir., 226 F.2d 953, 954, a majority of this court, in an opinion by Judge Medina, refused to modify a district court order fixing at $30,000 the bail of a defendant pending decision before trial under the Smith Act, 18 U.S.C. § 2385, on an indictment charging that the defendant had been a member of the Communist-Party since 1946. One reason the trial judge had assigned for exacting the large amount of bail was that, on defendant’s motion to reduce bail, he would not disclose his whereabouts or the nature of his employment from 1946 to 1951. The defendant contended that to penalize him for not revealing these facts was to infringe his privilege against self-incrimination. Judge Medina wrote: “The claim of some infringement of defendant’s constitutional rights under the Fifth Amendment is wholly without merit. It was defendant’s choice to withhold information as to his background, which is always of significance in fixing bail.” Judge Clark dissented, saying in part that Judge Medina’s opinion “underestimates the force of [the defendant’s] constitutional objection, which is that, while he may be allowed in form the benefit of the Fifth Amendment against self-incrimination, yet all the force of that great privilege is derogated by his facing confinement for resort to it.” Justice Harlan, as Circuit Justice, reversed and granted reduction of bail; see United States v. Noto, 76 S.Ct. 255, 257. Although he had dissented in Emspak, in his opinion in Noto’s case he stated: “No doubt a defendant’s past history and activities are relevant circumstances to be considered in fixing proper bail. But it would seem that in fixing bail, as in a criminal trial, an unfavorable inference should not be drawn from the mere fact that the Fifth Amendment privilege has been invoked. Assuming that a court when fixing bail can consider the absence of information concerning a defendant’s history, even though the absence results from a valid claim of the privilege, that should be a permissible consideration only to the ex*578tent that it bears upon the risk that the defendant Will not be available for trial. * * * I think it not sufficient to argue that the burden of proof was on petitioner, for in the setting of this case that seems to me but another way of saying that petitioner could only escape high bail under pain of waiving his Fifth Amendment privilege.”
5. It may perhaps be suggested that the error here is “harmless.” That suggestion cannot stand up, for two reasons: (a) The evidence against Halperin is not overwhelming. The jury could reasonably have acquitted him. (b) More important, if what I have said above is sound, the error here consisted of an invasion of a constitutional right. Such an error cannot be deemed harmless. See, e. g., United States v. Morgan, 2 Cir., 222 F.2d 673; Helton v. United States, 5 Cir., 221 F.2d 338, 342; Wrightson v. United States, 95 U.S. App.D.C. 390, 222 F.2d 556, 561.
6. In the background of cases like this, lies a question which I believe the Supreme Court has never squarely considered:13 The Fifth Amendment provides that the accused shall not be compelled to testify against himself. At the time of the adoption of that Amendment, it was well settled that, in a felony trial, the accused could not testify even if he desired to do so. Consequently, at that time and until 1878, a federal jury could not in fact, and would not, infer that the defendant’s silence in any way indicated his guilt. In 1878, however, Congress enacted the statute (now 18 U.S.C. § 3481) giving the accused an election to testify. It has been generally assumed that such statutes embody a wise policy favorable to accused persons who are innocent. But we should note that, in many European countries (other than England), countries surely no less civilized than ours, the inability of the accused to testify still maintains, and that there the policy behind that rule has wide approval as protective of the innocent (See discussion in point II of the Appendix to this opinion). It is notable, too, that shortly after the enactment of the federal statute of 1878, Maury, a learned American lawyer, published an article which reasoned plausibly that this statute unconstitutionally invaded the Constitutional privilege.14
Perhaps the Supreme Court will not soon so hold. But I suggest that—as Maury anticipated and as many experienced lawyers and judges have explained —such a statute often has the effect of coercing a defendant into abandoning his privilege and thus frequently forces an innocent defendant to give testimony, on cross-examination, gravely damaging to his defense.15
*579For if he does not use his statutory-option to testify, the jury will usually infer his guilt from his silence. In United States v. Bruno, 2 Cir., 105 F.2d 921, 923, 924, this court (per Judge Learned Hand)—in holding that it was not error for the trial judge to refuse to charge the jury that they must make no such inference—said that the advantage to the accused of such a charge is “wholly illusory; and only serves to put before [the jury] what will generally harm the accused. * * * ” Although reversing us, the Supreme Court—Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 200, 84 L.Ed. 257—acknowledged, in effect, that such an admonition to the jury is “psychologically futile,” since it is “psychologically impossible not to have a presumption arise against an accused who fails to testify.” A New York Commission on the Administration of Justice said in 1930: “It is undoubtedly the fact that juries do consider a defendant’s silence as a circumstance against him, despite the limited admonitions of the trial judge.” An English commentator wrote in 1901, “There can be no doubt that now almost everyone called to serve on a jury knows that a person can give evidence if he chooses, and every day, probably, juries look with growing suspicion upon accused persons who refuse to do so.” 16 “The number of defendants who fail to testify and who are yet acquitted must be almost negligible,” writes McCormick, Evidence (1954) 280.
Yet an innocent man may have good reason for not testifying. “It is not everyone”, said the Supreme Court in Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37 L.Ed. 650, “who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not everyone, however honest, who would therefore willingly be placed on the witness stand.” On that account, it was said, in State v. Cameron, 40 Vt. 555, 565-566: “In the great body of cases no wise practitioner would permit his client, whether he believed him guilty or innocent, to testify when upon trial on a criminal charge. The very fact that he testifies as if with a halter about his neck, that he is under such inducement to make a fair story for himself, his character and his liberty if not his fortune and his life being at stake, is enough to usually deprive his testimony of all weight in his favor, whether it be true or false. This is the case even when his manner upon the stand is unexceptionable, while his critical condition often creates such apprehension and excitement that his manner is open to great criticism, and if he does make a misstep after voluntarily assuming the responsibility of testifying, it will naturally be construed strongly against him. In short, his testimony is far more likely to injure him seriously than to help him a little. It is true that a clear intellect and perfect self-possession may enable an unscrupulous rogue to run the gauntlet of a cross-examination and make something out of this privilege, and the same qualities will be still more likely to help an innocent man to some advantage from it, but the true application of the statute is only to those rare cases, when a word from the prisoner, and him only, will manifestly dispose of what otherwise seems conclusive against him.”
If an innocent man, coerced by the inference that will be drawn from his silence, does testify, he finds himself in a serious plight. For instance, the Supreme Court has held—Reagan v. United States, 157 U.S. 301, 15 S.Ct. 610, 613, 39 L.Ed. 790—that the trial judge may properly (and often indeed should) tell the jury that “interest creates a motive for false testimony; that the greater the interest the stronger is the temptation; *580and that the interest of the defendant in the result of the trial is of a character possessed by no other witness, and is therefore a matter which may seriously affect the credence that shall be given to his .testimony.”17
Wherefore, in Ruloff v. People, 45 N.Y. 213, 221-222, the court said: “By statute (ch. 678 of the Laws of 1869) persons upon trial for crime may, at their own request, but not otherwise, be deemed competent witnesses. The act may be regarded as of doubtful propriety, and many regard it as unwise, and as subjecting a person on trial to a severe if not cruel test. If sworn, his testimony will be treated as of but little value, will be subjected to those tests which detract from the weight of evidence given under peculiar inducements to pervert the truth when the truth would be unfavorable, and he will, under the law as now understood and interpreted, be subjected to the cross-examination of the prosecuting officer, and made to testify to any and all matters relevant to the issue, or his own credibility and character, and under pretence of impeaching him as a witness, all' the incidents of his life brought to bear with great force against him. He will be examined under the embarrassments incident to his position, depriving him of his self-possession and necessarily greatly interfering with his capacity to do himself and the truth justice, if he is really desirous to speak the truth. These embarrassments will more seriously affect the innocent than the guilty and hardened in crime. Discreet counsel will hesitate before advising a client charged with high crimes to be a witness-for himself, under all the disadvantages surrounding him. If, with this statute in force, the fact that he is not sworn can be used against him, and suspicion be made to assume the form and have the force of evidence, and circumstances, however slightly tending to prove guilt, be made conclusive evidence of the fact, then the individual is morally coerced, although not actually compelled to be a witness against himself.”
It follows that, thanks to the statutory option, the accused is often confronted with this dilemma: He will be gravely disadvantaged if he does testify or if he does not. So much the more reason, then, for not making a further extensive inroad on the privilege, by augmenting the dilemma, in a case like Halperin’s. For, if my colleagues’ ruling stands, the accused, virtually coerced by the statutory option into testifying at his trial, will discover that, as an added result of so choosing, he must tell the jury that he had previously exercised his privilege as a witness before the grand jury.
7. There are those who assert that the Supreme Court’s recent generous interpretation of the privilege does not accord with the history of its origin in England or in the American Colonies.18 It might be argued that these critics are in part correct: The English Puritans who fought against the oath ex officio were criminals (i. e., heretics); they feared that, were they compelled to tell the truth under oath, they would suffer at the hands of the High Commission.19 The leading American colonists who strenuously objected to general warrants were also criminals, i. e., engaged in smuggling violative of valid legislation. In all likelihood, the provision of the Fifth Amendment, which prohibits a *581man’s compulsion to testify against himself, arose, like the Fourth Amendment’s prohibition of unreasonable searches and seizures, from the experiences of those smugglers 20 (who regarded their smuggling as a “natural right” justified by “the Great Law of Nature and Reason,” as among “the rights of man”).21 The critics of the Supreme Court, however, in their over-emphasis on the history of the Fifth Amendment privilege, overlook the fact that a noble principle often transcends its origins, that creative misunderstandings account for some of our most cherished values and institutions; such a misunderstanding may be the mother of invention.22 Thus religious intolerance constituted a major factor in the development of modern doctrines of liberty.23 “The insane ages,” writes Gilbert Murray, “have often done service for the sane, the harsh and suffering ages for the gentle and well-to-do.”24 The Supreme Court’s critics are guilty of the fallacy of “reduction” (the “nothing but” fallacy), akin to the evaluation of anything solely in terms of its ingredients (as in the case of the critic who described a Beethoven symphony as nothing but horses hair over cats’ guts). “If,” wrote Holmes, “truth were not often suggested by error, if old implements could not be adjusted to new uses, human progress would be slow.” 25 So the Supreme Court in Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, adhered to the two-witness rule in perjury prosecutions for a rational reason while discarding the old irrational reason which originally supported it.26
8. The foes of the privilege—beginning with Bentham—have mistakenly viewed it solely from a procedural angle; so considered, it seems to them an unjustifiable obstacle to the judicial ascertainment of the truth. They ignore the fact that the privilege—like the constitutional barrier to unreasonable searches, or the client’s privilege against disclosure of his confidential disclosures to his lawyer27—has, inter alia, an important “substantive” value, as a safeguard of the individual’s “substantive” right of privacy, a right to a private en*582clave where he may lead a private life 28 That right is the hallmark of our democracy.29 The totalitarian regimes scornfully reject that right.30 They regard privacy as an offense against the state. Their goal is utter depersonalization. They seek to convert all that is private into the totally public, to wipe out all unique “private worlds,” leaving a “public world” only, a la Orwell's terrifying book, “1984.” They boast of the resultant greater efficiency in obtaining all the evidence in criminal prosecutions. We should know by now that their vaunted efficiency too often yields unjust, cruel decisions, based upon unreliable evidence procured at the sacrifice of privacy. We should beware of moving in the direction of totalitarian methods, as we will do if we eviscerate any of the great constitutional privileges.31
APPENDIX I
Maury, Validity of Statutes Authorizing the Accused to Testify, 14 Am.L. Rev. (1880) 48, wrote, in part, as follows: “The interesting inquiry which now presents itself for our consideration is, whether the legislation authorizing the accused to testify in their own behalf, which has become so general, is consistent with the principle, that a man cannot be compelled to testify against himself.
“This legislation embraces statutes of two classes; that is to say, statutes which contain the provision that the omission of the accused to testify shall not operate against him or be in any way considered by the jury, and statutes which do not contain this provision, or anything equivalent to it.
“It seems to us that both classes of statutes are invalid, as being contrary to the great principle that a man shall not be compelled to be his own accuser, in this, that, although they profess to leave it to the accused to become a witness or not, they, in reality, force him to take the stand to protect himself from the inference of guilt which is almost sure to be drawn against him if he fail to do so, and the case call for an explanation on his part. He may be never so innocent, yet his omission to testify must always be at the risk of condemnation on the presumption of guilt founded on his silence when the law gives him an opportunity to speak.
“Thus driven to take the stand by a moral coercion, in whose presence the option or election to testify or not, given by the law, becomes a solemn mockery, he must submit to a hostile and searching cross-examination coextensive with the whole case. Filled with the terror and distraction which usually take possession of the minds of the innocent from the moment they become the objects of a criminal prosecution, paralyzing their reasoning powers, the scene swims before him, and he becomes involved in contra*583dictions and improbabilities of statement which the jury, who view him with suspicion and distrust anyhow, receive as controlling evidence of his guilt.
“It is true that he takes the stand ostensibly to testify for, and not against himself; but we must not be misled by a phrase, for once upon the stand, he can be cross-examined as to the whole case by the prosecution, and must, it is agreed on all hands, answer all relevant questions propounded to him, on pain of incurring the damaging consequences of refusal to do so. Thus, after taking the stand for his own protection, he finds himself, in consequence of the bewildering effects of the cross-examination directed against him, in a worse situation than if he had been called as a witness against himself by his accusers.
“But it is argued that the accused cannot suffer by declining to take the stand, because the court does not permit the prosecution to comment on the fact, and instructs the jury that they must not allow it to operate against him, while in some States the law provides, expressly, that the failure of the accused to become a witness shall not prejudice him in any way.
“It may be asked, in reply, whether it is in the power of courts or legislatures to prevent the accused’s failure to testify from prejudicing him in the minds of the jury. It is a fact in the case which the jury have derived from the infallible evidence of their own senses, and which must needs force itself on their minds. The failure of an accused to make an explanation in reply to an extra-judicial imputation of crime is not only relevant but strong evidence against him; but how tremendous must be the effect of his silence on that supreme occasion which is to decide forever the question of his guilt or innocence? * * *
“You might as well try to ‘bind the sweet influences of the Pleiades or loose the bans of Orion’ as try to erase from the minds of the jury a material relevant fact which has become a part of their consciousness through the evidence of their own senses. Indeed, if it were possible for the mind to escape the influence and effect of such evidence, there is no test by which it could be determined whether that result had been attained. * * *
“We conceive that it is no more within the power of courts and legislatures to withdraw this fact from the consideration of the jury, than it is to compel them to ignore the impressions made on their minds by the conduct and bearing of the accused in their presence on his trial. The legislature or court might just as well declare that no evidence shall be heard, as that a relevant fact in evidence shall have no significance at all, or only such significance as it may choose to give it.”
In Stephen, Prisoners on Oath (1898), an experienced English barrister discussed the effects of a statute which, in respect of some particular crimes, allowed the accused to testify; he objected to the then pending legislation (subsequently enacted) 32 extending this option to those accused of any major crime. Stephen wrote, in part, as follows:
“I allege that an innocent person is not less but more likely to be convicted if he can be heard as a witness for himself than if he cannot, and it is my present endeavour to show how this comes to be so. What I have to say on this head is the result of twelve years’ observation of the working of the 20th section of the Criminal Law Amendment Act, 1885. That section makes every person accused of an offense under that Act, or any one of several other specified offences, a competent witness on his own behalf. The well-known theory of the criminal law is that the prosecutor, who alleges the commission of a crime, must clearly prove that it was committed, and that, unless the jury are, in the time-honoured phrase, ‘satisfied beyond all reasonable doubt’ that it was, and that the prisoner did it, they must find a verdict of ‘Not Guilty’. This fact, by-the-way, is con*584stantly left out of sight by persons who urge that the prisoner ought to be a competent witness for the same reasons for which a party to a civil action ought to be competent, but it is good law for all that. And not only is it good law, but, as long as the prisoner cannot give evidence, the practice of juries closely corresponds with it. * * * It is this attitude of mind on the part of juries which is the real safeguard of innocent persons unfortunately—or through deliberate perjury—placed in suspicious circumstances. * * *
“I am perfectly convinced, by prolonged observation, that where prisoners are competent witnesses, and give evidence the attitude of mind which I have ascribed to juries in criminal eases generally disappears altogether. They no longer ask themselves, ‘Has the Crown proved that he did it?’ They ask, ‘Did he do it?’ This is quite a different question, and far less favourable to the prisoner. Where the prisoner cannot give evidence, the jury exact a standard of proof; where he has given evidence, they strike a balance of probabilities.
“Another general proposition which, unless my observation deceives me, is true of juries, is that they always draw the inference that a prisoner who tells them lies in his evidence is guilty of the crime with which he is charged. It is a very natural inference, but it is not invariably well founded, and it does not follow that, because a man tells lies about where he was on a particular occasion, he ought to be convicted, say, of a murder which he did not commit. Nor is the disposition to tell lies, though innocent, very exceptional. It frequently happens that circumstances of which a man has reason to be ashamed are the very facts which have brought, or helped to bring suspicion upon him. To take the obvious case: it may be the foundation of a criminal charge that the prisoner was seen in the immediate neighbourhood of the crime when he had no business to be there. The fact is that he was making love to a woman whose reputation would be seriously compromised if the truth were known. It is obvious that in such a case, if the man is tried, and is a competent witness, he is extremely likely to swear that he was not there, and it may very well be that owing to his not being a plausible liar, or to other circumstances for which he cannot account, or the like, the jury will not believe him. If they do not, they are almost certain, in my experience, to convict him. Some people seem to think that if a man has done anything wrong, however venial, and tells a lie about it, he ought to be convicted of anything, however serious, with which he is criminally charged. I cannot share that opinion. I well remember a case of arson, in which the counsel for the defence confided to me the difficulty he was in, because he had been instructed that the prisoner was in fact on the spot where the witnesses deposed to seeing him, for a reason which he did not choose to avow, just before the fire broke out. He was eventually able to make such a strong case of accident, which, I felt no doubt, was the true explanation, that the man was acquitted, but I would have given very little for his chance of escape if he had been called as a witness. * * *
“The value of an oath is not that it restrains the mendacity of dishonest witnesses, but that it makes honest witnesses, who are, of course, the great majority, more careful. For that reason I think the practice of swearing witnesses is worth maintaining. But its application to accused persons appears to me in the last degree objectionable. I have mentioned that witnesses may (sometimes) be hampered in telling lies by the fear of prosecution for perjury. I suppose a guilty prisoner might also be afraid of being prosecuted, but as to this I hold the strongest opinion, that practically to induce a man to be sworn as a witness and tell a string of lies, and then to prosecute him for perjury for having told the lies, would be cruel, unfair, and totally unworthy of English justice.
“Of course I know that, theoretically, a guilty man ought not to venture to swear to his innocence, but it might just *585as well be urged that a guilty man ought to be truly penitent and to plead guilty. Morally speaking, so he ought, but it is not expected of him. There is also this objection to the swearing of prisoners, that, rightly or wrongly, it leads, and must lead in fact, to an immense quantity of perjury, which would otherwise not be committed; that perjury in itself is a most undesirable thing, and that the constant spectacle of a great mass of obvious and unquestionable perjury cannot fail to weaken the existing feeling—which is not by any means too strong—of the sanctity of a witness’s oath. The matter may be stated compendiously as follows: A guilty prisoner, called as a witness, is bound to tell a lie by the sanction of knowing that he cannot escape conviction if he tells the truth. That sanction is so strong that the practically trifling sanction consisting of the fear of breaking an oath (apart from the fear of being prosecuted for perjury) amounts to nothing in comparison with it. Therefore putting him on oath will not in any degree make him more likely to tell the truth. Therefore there is nothing to be gained by putting him on oath.
“The case of an innocent prisoner is no better. If the jury will not believe his evidence (after examination and cross-examination) given not upon oath, they most certainly will not dream of believing it, or attaching any greater weight to it, merely because it is given on oath. And in this they will be perfectly right. * * *
“By far the best way of estimating how the competence of prisoners, if made general in this country, would work, is seeing how it has worked in this country in the particular cases in which it has existed for some years. * * * It does not make it easier for innocent prisoners to secure acquittal. The idea that it does so is a fallacy, natural enough if one had no experience, but exposed by the practical working of the law of competence. It does, however, on the contrary, make it more likely that innocent prisoners will be convicted.”
In discussing an English criminal trial, it was said by Rowan-Hamilton, The Trial of Alexander Dickman (1914) r “When the Criminal Evidence Act of 1898 was passed, enabling a prisoner in every case to give evidence, the opponents-to the bill protested that the onus on the part of the prosecution to prove their case would be shifted to the prisoner, who would be required henceforward by juries to prove his innocence. There is little doubt that this has come to pass. * * * A man of slow comprehension, cross-examined by an astute counsel, by the very stupidity of his answers, often leaves a damaging impression on the minds of the twelve, and convicts himself. A totally different impression might be created by a nimble liar. But one thing is certáin, juries now expect to see the accused in the witness-box.”
In Johnston, Evidence of Accused Persons, 4 Dominion Law Reports (1931) an experienced trial lawyer writes:
“In dealing with the question of calling the accused as a witness on his own behalf in a criminal prosecution, the only practical arguments available are those based on experience. In this branch of legal work, precepts and wise theories are of no value. * * * A general rule with its proverbial exceptions is the extent prudence permits one to go, and that rule is, never put the accused in the box. At times it may be safe and absolutely necessary to allow the prisoner to give evidence on his own behalf, but these are the very rare exceptions. Generally, and whether innocent or guilty, he assists, by his story of the facts, in convicting himself, and the reasons for this are apparent when some degree of consideration is given to the matter. * * *
“Another strong argument, and again it is more the result of experience than of theory, is that the evidence of a man on trial for a crime, however small the crime may be, is greatly weakened by reason of the existence of the powerful influence of self-preservation. Juries know this as well as lawyers do. In the case of murder, what would not most *586men swear to in order to save' their lives ? And in less serious offences such as larceny, forgery and the like, it is a safe prediction that the man who is criminal enough to commit such an offence is generally quite criminal enough to swear falsely. * * * The position taken by the accused in giving evidence is a trying one. Assume his innocence to be a fact, he feels the importance of his testimony to such an extent that the thought unnerves him. His evidence may be perfectly true. His manner of giving it, for the reasons suggested, may be convincing as to its falsehood. On the main facts he may be compelled, if a truthful man, to corroborate the case for the prosecution and yet be innocent of the crime charged in the indictment. The color given to an honest act by its relative surroundings may so change its character as to make it proof of guilt in the eye of the jury. It is always easier to deny a statement than to explain its collateral bearings, and an experienced counsel seldom attacks the main facts deposed to, but leads the witness quietly and unsuspectingly into the by-ways and lanes leading up to the principal issue. Here, he secures admissions and statements favorable to the Crown, and the denials of the chief facts alleged in evidence against the accused are so weakened or qualified as to render them of no value.
“Where evidence other than the prisoner’s, is called for the defence, it will be found that it is either positive or explanatory. If the jury do not believe this testimony, it is almost unnecessary to argue that they will not believe the story of the prisoner. His statements cannot do more as a rule than corroborate the witnesses already called on his behalf, and if these witnesses are not believed, very little, if any, weight will be given to the corroboration. If they do believe his witnesses, there is an end of the case, if the facts are at all material, and a great risk is avoided, and many apparent dangers escaped by not calling the accused. Many a clean, strong .defence is utterly ruined by the suspicion cast upon it through the hesitating, nervous conduct of the prisoner as a witness. The jury are apt to find guilt not because the Crown case is strong, but more often because the accused having undertaken to prove his innocence, has not succeeded in doing so. # * *
“The fear of falling into a trap, the desire to put the best side of the story foremost, and the anxiety to explain away doubtful points, tend to increase the difficulties in the way of even an honest and innocent prisoner. The feelings and desires hamper a witness very much, and the moment hesitation in manner or speech becomes apparent, much injury is done to the defence. * * * Every contradiction, however slight, is apt to be taken as another evidence of guilt. * * * All prisoners who stand their trial profess innocence. This fact bears heavily against belief in the truth of their evidence when given. Assume rightful convictions, and the evidence or denials of accused persons generally must be untrue. They therefore offer to the jury a statement which belongs to a class of testimony always false, in cases of conviction, if the conviction be proper. The guilty man denies his guilt. This weakens the denial by the innocent and detracts from its weight with the jury. Every man tried for crime cannot be innocent. Denials by the innocent are weighed in the same scales as the evidence of the guilty. When a prisoner goes before a petit jury, they are apt to look upon his assertions of innocence as a matter of course, and what may always be expected. We say when we hear of a prisoner giving evidence, ‘Of course, he will deny the charge.’ This feeling creates the great element of doubt.
“Another and a grave danger in examining the accused consists in the fact that the door is thereby opened to a question of character. The Crown can offer no evidence of bad character, except indirectly in showing other similar crimes in certain cases to prove the act to be that of design* and not of accident. *587But when the prisoner is called, his past life becomes the subject of enquiry, and it is not the happy lot of every man to be able to stand before a Court and Jury, and give his record without some fears and misgivings. Innocent acts may look black indeed, when viewed under such circumstances as exist in a criminal trial, where the accused is suspected and perhaps already convicted in the minds of the jury and spectators. Explanations do not always satisfy the listeners. Private and long-buried events are paraded in public. Sins of which the prisoner may have sincerely repented or for which he has paid the full penalty, are raked up, and he is confronted with matters, now half forgotten, or for many reasons incapable of explanation. No man’s record is so perfect, that it cannot be reached by the tongue of the slanderer or the knife of the enemy, and few men can produce evidence to support their contention of innocence after the lapse of many years, even if such evidence were admissible.”
APPENDIX II *
(A) In Western Europe, the privilege against compulsory self-incrimination is embodied in a system which recognizes a middle ground between (a) complete disqualification totally precluding a person unable to take the oath from giving evidence (as was the case with “interested parties” at common law; see 2 Wigmore, Evidence, (1940) Sections 575-599) and (b) absolute qualification whereby all testimony must be given under oath subject to cross-examination, impeachment and the penalties of perjury.33 This system is partially analogous to that of the English courts in the 19th century and of present-day Georgia, in that the accused, though not permitted to take the stand, is allowed to make an unsworn statement. As to this practice at common law see Wigmore, supra, Section 579; Orfield, Criminal Procedure (1947) 349-50; Plucknett, A Concise History of the Common Law, (14th Ed. 195) 1412; I Stephen, History of the Criminal Law (1883) 460. A significant distinction exists, however, since at common law the unsworn statement permitted to an accused was usually not allowed to be considered as evidence, but merely an argument on “what he claimed to be the facts.” “ * * * no finding can be founded by the jury on the strength of such a statement;” Commonwealth v. Stewart, 1926, 255 Mass. 9, 151 N.E. 74, 77, 44 A.L.R. 579, reviewing history and authorities.34 In European practice generally the accused’s unsworn statements do constitute evidence and may be given conclusive weight in his favor by the triers of fact; at the *588same time he is not compelled to make even unsworn statements, and disqualification from taking the oath precludes him from temptation to lend greater weight to his statements by committing perjury. For details of this practice in individual countries see (B) infra. For the rationale behind the European rules, and its resemblance to the reasoning advanced by English and American courts and commentators prior to .the passage of enabling acts giving an accused the option to testify see (C), infra.
(B) 1. In Scandinavia, the privilege against self-incrimination, which is more extensive than that afforded in either Anglo-Saxon or Continental countries, appears as part of a general policy to avoid compelling testimony from persons reluctant to give it, since such compulsion invites perjury.35 Thus in Norway no person called as a witness in any proceeding may be required to answer a question which could expose him :or “his nearest” to criminal liability or loss of community esteem. Lov om rettergangsmaaten i straffesaker, 1 July 1887 (hereinafter STRPL) Section 177. (“His nearest” as defined by STRPL Section 176 includes members, of his immediate family, brothers-and sisters-in-law, fiancees, adopted parents and foster children. As a corollary of the .rule against self-incrimination, persons standing in this relationship to an accused may decline to testify at his trial). “Loss of community esteem” has several times been the subject of interpretation by the Supreme Court, which has given it a broad construction, pointing out that moral evaluations vary with time, place and persons. See, e. g., decisions at 1895 N. Rt. 850; 1896 N.Rt. 221; 1909 N.Rt. 623; 1912 N.Rt. 203. Nor need the loss of community esteem be devastating; the witness may decline if it would be reduced “a notch.” 1895 N.Rt. 850. And see Stang, 138-140.
An accused may never be put under oath; furthermore, he may decline to make any statement whatever. At the beginning of the pretrial inquiry or the trial the court must ask whether he wishes to make an unsworn statement or answer questions. STRPL Sections 255, 261. If he declines, that ends the matter; and if he consents to participate he may still refuse to answer any given question. STRPL Section 255. At trial he may comment upon or explain the evidence as it is presented. STRPL Section 261. He may subject himself, to the extent he desires, to examination by defense counsel and cross-examination by the prosecutor. The court must assist him by calling to his attention any inconsistencies-and inviting him to correct them. STRPL Section 329(1). He may not be impeached by inconsistent statements made out of court, and no confession signed out of court, regardless how voluntarily, may be introduced against him. STRPL Section 329(2). And see Stang, op. cit. supra, 194-195. The triers of fact may assign whatever weight they deem proper to his statements, id. 128-130. The furthest the court may go in encouraging even an unsworn statement is to advise an accused that his failure to explain certain facts may possibly count against him, STRPL Section 260; and his right t.o lie with impunity is specifically provided for by statute, STRPL Section 167.-
Protection against self-incrimination is" further assured by the fact that a judge rather than a grand jury affords the sole means by which the prosecutor can' compel testimony of witnesses prior to trial. In the pretrial proceedings, as.soon as suspicion is directed at a particular accused, he can no longer be re*589garded as a witness (who may invoke his privilege only as to particular questions) but acquires all the rights of an accused, including the right to silence and representation by counsel. These advantages are regarded as considerable. See Andenaes, 1941 Tidsskrift for Rettsvitenskap 475ff. The judge alone may question suspects in these proceedings. And STRPL Sections 255-260 strictly regulates the form and content of the questions that may be asked. Thus, there may not even be a suggestion that he confess; the questions must be put politely; leading, captious or suggestive questions are forbidden. The same applies to questions asked at trial. See also I Salomonsen, Straffeprocesslov (1925) 284-294.
2. In Germany the witness’ protection against self-incrimination is limited to facts tending to prove guilt of a criminal offense, Strafprozessordnung, 12 September 1950 (hereinafter StrPO) Section 55. The right to decline to answer, however, applies also to matters which might incriminate the same members of the family to whom the exemption applies in Norwegian law (see above) and those persons are similarly exempt from testifying against an accused. StrPO Section 52. Any person called as a witness must be instructed by the court of his right to refuse to answer incriminating questions; StrPO Section 55(2).
Not only may an accused never be put under oath; it is considered basic to the entire code of criminal procedure that he be completely free to reply or abstain from replying to the accusations; see Schmidt, Lehrkommentar zur Strafprozessordnung (1925) 58-65.36
On the other hand, the accused has the right at all stages in a criminal trial to comment upon and explain the evidence as it is presented (StiPO 257) and to present his views on factual and legal questions (StrPO 258(1) (2)). Questioning of a suspect or accused at the pretrial proceedings is, as in Norwegian law, the function of the judge alone, and is regulated in much the same manner by StrPO Sections 133-136. Refusal to make even an unsworn statement is not legally a basis for inference of guilt. That the system of evaluating the evidence may lead to the drawing of such inferences, see Silving, 69 Harv.L.Rev. at 696 n. 54 (1956). But evidentiary weight may be ascribed to an accused’s unsworn statements in his own favor, a proposition that is not startling when it is remembered that in Germany witnesses may, and do, at the discretion of the court, testify without taking the oath. See StrPO Sections 60-62; Bahna, Strafprozessrecht (1929) 106.
3. Swiss law appears to afford a witness protection against self-incrimination. Articles 41 and 155 of the Swiss Federal Criminal Procedure Act (Bundesgesetz uber die Bundesstrafrechts pflege June 15, 1934, Bereinigte Sammlung der Bundesgesetze 1848-1947 Vol. 3 at 303) implicitly prohibit the extortion under pressure, threat, promise or false *590statement, of testimony of the accused. It also, it is generally assumed, prohibits giving a self-incriminatory evidence; see Giezendanner, Die Stellung des Beschuldigte im Bundesstrafprozess im eidgenossischen Behorden 30, 66. The Cantons recognize such protection. Thus, e. g., in Bern Canton the Gesetzbuch ueber das Verfahren in Strafsachen, 29 June 1854 (hereinafter StrV) Section 141(2) provides that no witnesses may be required to answer a question if to do so might subject him to civil or criminal liability. Since, however, that section has been interpreted to include matters adversely affecting his honor, the protection is in fact almost as broad in Switzerland as in Norway; see Stalder, Ausnahmen von der Zeugnispflicht (1937) 40-48. The witness is also entitled to invoke the privilege to avoid testifying against members of his family to the same extent as if he himself were concerned; StrV Section 141(1). The court is under a duty to advise each witness of his privilege before he testifies; Stalder, supra.
An accused in Switzerland falls into the category of disqualified rather than unreliable witnesses; Stalder, supra, 25-29. The distinction is significant since the basic principle of Swiss Criminal procedure is that of avoiding any compulsion on an accused (see StrV Section 106): “The accused * * * may be used to supply evidence, but only when he freely offers himself for that purpose.” Stalder, op. cit. supra, p. 30. Since any statements made under oath would, if adverse to his interests, be made under compulsion of the perjury statute, any statement he makes must be free from that compulsion.
4. Elsewhere on the European Continent, while the protection afforded witnesses against compulsory self-incrimination varies, the uniform practice as to an accused is (1) disqualification from taking the oath and (2) freedom to give evidence in his own behalf without fear of punishment for lying; see Schlesinger, Comparative Law 208-209 & fn. In Scandinavia, Switzerland and Germany there is (3) considerable freedom from compulsion even to make unsworn statements on the theory that the accused (see (C), infra) must be unhampered in his defense; at most an unfavorable inference may be drawn from silence, never a presumption of guilt. See, e. g., STRPL Section 377. (If no contrary reason appears, refusal to make an unsworn statement may be taken as a guilty plea in cases of minor misdemeanors only; no inference if the statement is inadequate.) In other countries, like France, there may be considerable pressure exerted to obtain a statement or even a confession. France does not permit a privilege against self-incrimination to witnesses; 2 Le Poittevin, Code d’instruction criminelle annoté (1926) 53-54. And the provisions of the Code Criminelle concerning questioning of the accused and his relatives (the latter being disqualified rather than, as in the three countries discussed above, being permitted to decline to testify) demonstrate clearly that the disqualifications are not, in that country, designed to protect the rights of the accused and his family, but to protect the court against unreliable evidence. See Stalder, op. cit. supra, pp. 26, 40, 41 for Swiss criticism of both France and Germany for inadequate protection of witnesses against compulsion to testify adversely to their own interests, and France for inadequate protection of the accused.
(C) Disqualification of an accused together with absolute freedom on his part to lie with impunity, are almost unanimously regarded by European commentators as indispensable to the most important achievement of criminal law reform in the 19th century, i. e., a transition from “inquisitorial” to “accusatory” procedure. In the former an accused was under a duty to answer questions truthfully, however adverse to his defense, and to participate in the proceedings which led to his conviction; in accusatory procedure the accused is free to defend himself as he sees fit, and must be under no compulsion at any time to give evidence adverse to his cause. *591Schmidt, op. cit. supra, pp. 58-59 (Gorman law); Nissen, Die Durclifuhrung des Anklageprinzips im norwegischen Strafprozess (1918) 3-8 (Norwegian law); Stang, op. cit. supra, pp. 19-21 (same); II Castberg, Norges statsforfatning (2nd Ed. 1947) 404-406 (Norwegian Constitution: Effect of construction of constitutional prohibition of torture as precluding any compulsion on accused to give an explanation); Stalder, op. cit. supra, pp. 40-41. The privilege against self-incrimination accorded to witnesses is derivative of the protection afforded an accused: complete freedom of defense would be jeopardized if a person could be called upon in a proceeding to which he was not a “party” and forced to testify as to those matters which the disqualification of an accused was designed to exempt him from compulsory disclosure. Ibid.
1. The right of an accused to testify, since in fact it is deemed to amount to a compulsion to testify, is “not in accordance with the pure principles of accusatory procedure.” Brangsch, Vorleben und Vorstrafen des Angeklagten als Indizien im englischen Strafprozess (1953) 6-7. “* * * the right to testify is, for the accused, a gift of a two edged sword * * * Certainly, there is no duty to testify * * * However, the refusal of an accused to testify as a witness in many cases has the effect of a confession in the minds of the jury -X- -x- * jn -(.jjjg manner; the right of the accused to testify becomes in fact a compulsion to testify; and in an age of highly developed cross-examination it is quite possible for the unscrupulously aggressive prosecutor to bring an innocent accused into grave danger of conviction.” Ibid. Compare II Wigmore, Section 579; for comparable arguments by English and American authorities: Ashley’s statement, id. p. 706 that permission to testify amounts to compulsion to testify; Steele and Sawyer’s statements, p. 703, on the dangers to an innocent accused.
2. European commentators also support disqualification from taking the oath on the ground that to allow such oath-taking would in fact constitute compulsion to commit perjury. The accused would feel the need to lend weight to his words by subjecting himself to the oath, and once he had taken it, all his natural instincts would be to lie away matters disfavorable to his cause. In Europe it is regarded as completely inconsistent with accusatory (as opposed to inquisitorial-) procedure to punish an individual for lying in his own defense, when his personal freedom is threatened by the State in the form of a criminal prosecution. See Schmidt, op. cit. supra, pp. 58-60; 62-65. To put an individual— witness or accused—in a position where his natural instincts and personal interests dictate that he should lie (be these interests the avoidance of criminal sanctions, loss of property or honor to himself or his family) and then punish him for lying, is regarded as an intolerable invasion of his “personality”. Stalder, op. cit. supra, pp. 29-31; (partially a Swiss criticism of German law for not allowing a witness to decline to testify as to matters affecting his property rights and civil disabilities.) To threaten an accused with punishment, allow him to defend himself against that threat, by taking the oath and committing perjury, and then punish him for the perjury, is an “absurdity”. Schmidt, op. cit. supra. In effect, the state would be forcing him to commit a crime and then punishing him for it. Ibid.
3. Since, in accusatory procedure, an accused must not be under a compulsion to make statements adverse to his own interests, any such statements made under oath (even though the oath were taken voluntarily) would be open to the objection that they were compelled by fear of the sanctions for perjury. Schmidt, supra,37 Stalder, supra. Moreover, the oath cannot be said to be taken voluntarily, since there is always the fear that failure to take it if it is avail*592able will result in an inference of guilt. Brangsch, supra; and see quotation in footnote 36, supra. In either case the result is the same: compulsion to “make statements which the accused of his own free will would not make,” and hence interference with his “freedom of defense”. Schmidt, supra.
4. European commentators also doubt that the statements made by an accused in his own favor, would be accorded greater weight if made under oath. Stalder, supra. “No one can expect an accused to fight for truth and justice in his own prosecution.” Schmidt, supra. Compare statements in II Wigmore, supra, Section 579, pp. 203-204.
Many of the arguments of the proponents of statutes enabling an accused to testify in his own behalf (See II Wig-more, supra, Section 579), rested in part on the assumption that unless the accused put himself under oath he was precluded from giving evidence in his own behalf. These arguments would, it should be noted, have considerable less force against the European form of disqualification, where the accused’s unsworn statements may be accorded considerable weight.
On Petitions for Rehearing or to stay issuance of mandate and to continue bail.
PER CURIAM.
Petitions for stay of mandate and continuance of bail as to each of appellants granted.
Petitions for rehearing denied.
. Not the grand jury which indicted him.
. The Court said: “There can be no basis, then, for excluding the testimony objected to, unless it be on the theory that, under the peculiar circumstances of the case, the defendant’s immunity should be held to survive his appearance as a witness on the second trial, to the extent, at least, that he may be permitted to preserve silence as to his conduct on the first. Whether there should be such a qualification of the rule that the accused waives his privilege completely by becoming a witness must necessarily depend upon the reasons underlying the policy of the immunity, and one’s view as to whether it should be extended. The only suggested basis for such a qualification is that the adoption of the rule contended for by the government might operate to bring pressure on the accused to take the stand on the first trial, for fear of the consequences of his silence in the event of a second trial, and might influence the defendant to continue his silence on the second trial, because his first silence may there be made to count against him. * * * We need not close our eyes to the fact that every person accused of crime is under some pressure to testify, lest the jury, despite carefully framed instructions, draw an unfavorable inference from bis silence. See State v. Bartlett, 55 Me. 200, 219; State v. Cleaves, 59 Me. 298, 300. Wben be does take the stand, he is under the same pressure: To testify fully, rather than avail himself of a partial immunity. And the accused at the second trial may well doubt whether the advantage lies with partial silence or with complete silence. Even if, on his first trial, he were to weigh the consequences of his failure to testify then, in the light of what might occur on a second trial, it would require delicate balances to enable him to say that the rule of partial immunity would make his burden less onerous than the rule that he may remain silent, or, at his option, testify fully, explaining his previous silence. We are unable to see that the rule that if he testifies, he must testify fully, adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not.” 271 U.S. at pages 498-199, 46 S.Ct. at page 568.
. 21 Ill.L.Rev. (1926) 396, 400.
. Brown, 40 Am.Bar Ass’n J. (1954) 404, 406.
. After so stating, the court held that Johnson had deliberately waived the error.
. Cf. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406.
. See Judge Learned Hand, dissenting in United States v. Remington, 2 Cir., 208 F.2d 567, 571, at pages 572-573.
. Ibid.
. See, e. g., 8 Wigmore, Evidence (3d ed.) Section 2250 ; United States v. St. Pierre, 2 Cir., 132 F.2d 837, 840, 147 A.L.R. 240, dissenting opinion; Morgan, The Privilege against Self-Incrimination, 84 Minn.L.Rev. (1949) 1. Coke called the oath ex oficio an invention of the devil; see 12 Co. 26, 77 Eng.Rep. 1308.
. In United States v. Scully, 2 Cir., 225 F.2d 113, I suggested that, were it not for Wilson v. United States, 162 U.S. 613, 623-624, 16 S.Ct. 895, 40 L.Ed. 1090 and Powers v. United States, 223 U.S. 303, 313-314, 32 S.Ct. 281, 56 L.Ed. 448, I would hold that every witness before a grand jury should be advised of his privilege. When I so wrote, I could perceive no now doctrinal trend in the Supreme Court decisions contrary to the Wilson and Powers decisions. But, as shown infra, such a trend has since developed.
. See also concurring opinion in United States v. Gonzales Castro, 2 Cir., 228 F.2d 807, 808, at page 810.
. See Powell v. United States, 96 U.S. App.D.C. 367, 226 F.2d 269, 276: “The scope and meaning of the Self-Incrimination Clause have been restated emphatically * * * in the opinion of Chief Justice Warren in Quinn v. United States.”
. In Raffel, the Court skirted this question. See also Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257.
. Maury, Validity of Statutes Authorizing the Accused to Testify, 14 Am.L.Rev. (1880) 753, quoted in part in point I of the Appendix to this opinion.
. See, e. g., Stephen, Prisoners On Oath (1898) and Johnston, Evidence of Accused Persons, 4 D.L.R. (1931), quoted in part in point I of the Appendix to this opinion.
In the states of this country, except by statute in Pennsylvania, and in the federal courts as the decisions now stand, if the accused elects to become a witness, the prosecutor, on cross-examination, may bring out the fact that the defendant had been previously convicted. Virtually all experienced lawyers and judges acknowledge that, almost invariably, the jury will treat such evidence as evidence of the defendant’s guilt of the crime for which he is on trial, despite the judge’s instruction that they must consider it as bearing on the defendant’s credibility only. On that account, usually the lawyer for an accused with a criminal record will advise him not to testify. Yet his failure to do so is likely to convince the jury of his guilt. Either way he is likely to be convicted.
The English and Pennsylvania statutes provide that the prosecutor may not ask the accused who testifies concerning any previous conviction except in certain restricted specified circumstances. See 1 Wigmore, Evidence (3d ed.) Section 194a; and note Uniform Rules of Evidence (1953) Rule 21.
The Supreme Court, without a statute, could, I think, adopt that rule. I hope it soon will.
. See, Solicitors’ J., March 9, 1901, 1930, quoted in Best, Evidence (12th ed., 1922) 542; cf. 2 Wigmoro, Evidence (3d ed.) p. 425.
. See also 1 Am.L.Rev. (1867) 443, 446, 448.
Cf. Judge Learned Hand’s comment, dissenting in United States v. Remington, 2 Cir., 208 F.2d 567, 571, at page 575 on “the repugnance [of]- decent people” at punishing a man for perjury which officials or their agents have “incited” or “instigated” him to commit.
. See, e. g., April, A Reappraisal of the Immunity From Self-Incrimination, 39 Minn.L.Rev. (1954) 75.
. See, e. g., Usher, The Rise and Fall of the High Commission (1913); Frank, If Men Were Angels (1942) 240-250; United States v. St. Pierre, 2 Cir., 132 F.2d 837, 840, 147 A.L.R. 240, dissenting opinion; Pittman, The Colonial and Constitutional History of The Privilege Against Self-Incrimination In America, 21 Va.L.Rev. (1935) 763.
. See Boyd v. United States, 116 U.S. 616, 624-625, 6 S.Ct. 524, 29 L.Ed. 746. There the Court noted that similar experiences led to the unreasonable search- and-seizure prohibition of the Fourth Amendment and the Self-Incrimination prohibition in the Fifth.
. See Miller, Origins of the American Revolution (1943) 325, 340. The Tea Act of 1773—of which the smugglers were the first victims—led to the Boston Tea Party which was hailed as a “glorious illegality” based on “the great law of nature and reason” which gives every society “a right to defend itself from ruin.” Ibid. 338, 349.
See also, ibid. 84: “A New Englander, it was said (in 1775), derived his right of cheating the revenue, and of perjuring himself, from the example of his fathers and the rights of nature.”
See, too, Lasson, the Fourth Amendment to the Constitution (1937) 51-52. At 72, he says: “In 1768, a riot resulted when John Hancock’s sloop, ‘Liberty,’ was seized under a writ for landing Madeira wines without payment of duties.”
See, too, Quincy’s Mass.Reports (1805) 456:0:; Hancock was arrested. At the trial, he objected to being tried in an admiralty court according to civil law rules of evidence and not according to common law rules with witnesses appearing in open court for examination; he asserted it as a right that “witnesses not presumptions * * * are to be the evidence.”
See also Pittman, loe. cit., 783ff; McClellan, Smuggling In the American Colonies (1912) 89.
. Frank, Book Rev., 25 Ind.L.J. (1950) 231, 232-233.
. Frank, Fate and Freedom (1945) 284-288.
. Murray, Five Stages of the Greek Religion (1925) 236.
. Holmes, The Common Law (1881) 37.
. Note also, e. g., the history of the client’s privilege; 9 Holdswortli, History of English Law (1926) 201-202; 8 Wig-more, Evidence (3d ed.) Sections 2290-2291.
. Bentham protested with equal vigor against this privilege. See his Rationale of Judicial Evidence, b IX, pt. IV, Ch. 5.
. Of course, “procedural” or “adjective law” cannot be kept separate from “substantive law”; the two intertwine and influence one another (as “means” and “ends” usually do). The attempt sharply to differentiate them “prevents lawyers from following up enthusiastically the implications of a ‘judicial process’”; Frank, Some Tame Reflections on Some Wild Facts, in Vision and Action (Ratner ed. 1953) 56, 79-80. See also In re Fried, 2 Cir., 161 F.2d 453, 463-464, 1 A.L.R.2d 996; Frank, Courts on Trial (1949) 103-107; Silving, Testing of the Unconscious in Criminal Cases, 69 Harv.L.Rev. (1956) 683, 699-701.
. See Fortas, The Fifth Amendment, 25 Cleveland Bar Ass’n J. (1954) 92.
See also note, 55 Col.L.Rev. (1955) 527 at 542: “Traditionally Anglo-American law values the individual’s life and freedom so highly that the interest of the state in discovering and punishing wrongdoers is subordinated to the right of the accused to remain a passive spectator in the judicial search for the fact of his wrong-doing.”
. See Hall, Police and Law In a Democratic Society, 28 Ind.L.J. (1953) 133, 141; cf. 146, 162.
. Cf. Brock v. United States, 5 Cir., 223 F.2d 681, 684-685.
See Beutel, 41 Am.Bar Ass’n J. (1955) 490: “We may well rue the day that prominent members of the Bar supported the proposition that there are ‘moral’ and ‘immoral’ constitutional provisions.”
. Criminal Evidence Act, 61 and 62, Viet. C36 Section 1(e).
Point II of tlie Appendix, which necessarily involves the use of materials in foreign languages with which the writer of this opinion is not conversant, was prepared by Mr. Walter E. Shuttleworth, a member of the Third Year Class at Yale Law School and my Law Clerk for the October, 1956 term. “Europe” or “European,” when used in this part of the Appendix, does not include Great Britain.
See, also, Meyer, German Criminal Procedure, 41 Am.Bar Assn.J. (1955) 592 at 606-667; Pekelis, Law and Social Action (1950) 59; Rebecca West, Train of Powder (1955) 241-242.
. Thus, as to an accused under our system, most enabling acts are construed to have abolished the right to make an unsworn statement. E. g., Rex v. McNab, 1 D.L.R. 583, 578 C.A.B.C.1945 (Canada Criminal Evidence Act so construed). The English Criminal Evidence Act of 1898 specifically preserves the right of an accused to make unsworn statements, however. See Reg. v. Pope, 18 T.L.R. 717 (1902). The same appears to be true of the Dominions other than Canada. See Cowen and Carter, Essays on the Law of Evidence (1956) 205-218.
. In England and in those British Dominons where the right to make an unsworn statement survives the statute permitting an accused to take the oath, there is some authority for regarding the unsworn statement as “something less than evidence and something more than mere argument.” Rex v. McKenna, 44 St.R.Qd. 299, 307 (1951). And see Cowen and Carter, Essays on the Law of Evidence (1956) 205-218, urging that the jury be so charged as to statements of the accused not made under oath.
. Thus'in Norway not only. Jo the statutory provisions make wide exceptions to ■the rule against compulsory testimony where, because of ,a confidential relationship or strong personal interest, the witness would be reluctant to testify; but the courts, also frequently., ref rain from compelling testimony where the witness asserts a strong aversion to testifying even though his case does not fit within the. statutory exceptions. See Stang, Rettergangsmaaten i s.traffiesaker (1951) 138-139, 141-142 and eases there cited. See also 1 Salomonsen, Straffeprocesslov (1925) .183-194.
. The 1950 code (StrPO) of criminal procedure, Section 136(a) extended the disqualification from oath-taking by an accused to prevent indirect pressure toward self-incrimination by prohibiting the use of drugs or lie detectors irrespective of the waiver of an accused. “Tf the accused declined to submit to application of the apparatus—assuming its reliability—• the inference that he did not want to tell the truth would be inescapable. If he wanted to avoid that inference * * the use of the apparatus would constitute a compulsion to make statements other than those he would decide to make of his own free will: compulsory self-incrimination.” Schmidt, op. cit. supra at 00.
The Bonn Supreme Court has held that use of a lie detector, though with the consent of the accused, to obtain a conviction. .violates Art. I Section I of the Constitution and a statutory prescription; see Silving, 69 Harv.L.Kev. 683, 688-689 (1956).
Since the same reasoning used to deny waiver of the right to refuse to incriminate oneself by lie detector is also used to prevent an accused from taking the oath (and see (C), infra) it is possible that an enabling act allowing the accused to testify- as a witness might be held unconstitutional in Germany.
. Whore supra appears without page number, the pages in the immediately preceding citation of the same author are designated.