to be adduced from the witness whether there is a reasonable ground for the apprehension of danger, if the witness is forced to answer, and in case danger of self-incrimination arises great latitude should be allowed him in judging for himself of the effect of any particular question. The apprehended danger must be real and appreciable, not of an imaginery and unsubstantiated character, nor must some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct, be allowed to interfere with the administration of justice, beyond these reservations the court is bound to insist on a witness answering unless he is satisfied that the answer will tend to place the witness in peril. 18 In Adams v. Floyd19 it was held that where the answer to any question might tend to incriminate, disgrace or expose a witness to unfavorable comment, the privilege to answer is left to his own conscience.

At what stage of the trial and in what manner the privilege may be claimed has been decided in the leading case. 20 In this case the court held that it made no difference in the right of the witness to ask protection although he had answered in part, he still was entitled to claim the privilege at any stage of the inquiry, and that no answer forced from him by the presiding judge (after such a claim), could be afterwards given in evidence against him, and that, if a witness claims the protection of the court on the ground that his answer would tend to criminate him, and there appears reasonable grounds to believe that it would do so, he is not compellable to answer; and if obliged to answer notwithstanding, what he says must be considered to have been obtained by compulsion, and cannot afterwards be given in evidence against him. The mere declaration of a witness, on oath, that he believes that the answer would tend to criminate him is sufficient and conclusive, where no other sufficient circumstances appeared in the case to induce the judges to believe that the answer would tend to criminate the witness.21

Interpretation of the Constitutional Guaranty. Before entering upon this subject I

18 Confirmed in Ex parte Reynolds, 20 Ch. Div. 294. 19 3 H. & N. 351.

20 Queen v. Garbett, 2 Car. & Kirwan Rep. 474. 21 Fisher v. Ronald, 12 C. B. 762.

will note here that it was early decided that the fifth amendment to the constitution of the United States does not operate upon a witness testifying in the state courts, as the first eight amendments to the constitution are limitations only upon the powers of congress and the federal courts, and are not applicable to the several states, except so far as the fourteenth amendment may have made them applicable. 22 In the many cases that have arisen under the fifth amendment and the various similar provisions contained in the state constitutions a two-fold construction has been given the maxim which has led to a distinction being made as to the rule of law applicable to a question, the direct answer to which may fix a stain of infamy on the character of the witness, and the question the answer to which may have a tendency to implicate the witness in a criminal charge for which he may be prosecuted. The object of the first is to save the witness from being the herald of his infamy, and the second from furnishing himself the means of his punishment. In cases where the tendency has been to apply the first rule of construction the courts have held that the witness' refusal to answer any question which might tend to incriminate, disgrace or expose him to unfavorable comment rests largely with his own conscience and feeling of responsibility. 23 In Merluzzi v. Gleason, 24 it was held that it was within the province of the court to extend the privilege of silence to a witness where his affirmative answers to questions would tend to degrade and disgrace him, and it was entirely superfluous to inquire of him why he did not answer. If it reasonably appears from the question and the facts that the answer will

22 Barron v. Baltimore, 7 Pet. 343, 8 L. Ed. 672; Fox v. Ohio, 5 How. (U. S.) 410, 12 L. Ed. 213; Wethers v. Buckley, 2 How. (U.S.) 84, 15 L. Ed. 816; Twitchell v. Commonwealth, 7 Wall. 321, 19 L. Ed. 223: Presser v. Illinois, 116 U. S. 252.

23 1 Burr's Trial, 244. Chief Justice Marshall in this case summarizes the rule as follows: "It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it, so as to furnish matter for that conviction. In such a case, the witness must himself judge what his answer will be, and if he say, on oath, that he can not answer without accusing himself, he can not be compelled to answer."

24 59 Md. 214.

have a tendency to expose the witness to a penal liability, or to any kind of punishment or to a criminal charge the witness is not bound to answer, 25 or if the witness says that the answer may tend to convict him and on that account refuses to answer, and the court imagine any state of facts under which the answer might lead to such a result, the witness may insist upon his right to the privilege of silence, 26 or where a witness who claimed the privilege had instigated the prosecution and had made a sworn statement upon the fact of the information to the effect that the allegations thereof were true, yet his conduct was held not to amount to a waiver of his constitutional privilege when called upon as a witness upon the trial of the accused, 27 and finally if a direct answer to a question will disgrace a witness and fix a stain of infamy upon his character, so as to make unfair his credibility as a witness, he is not bound to answer unless the proposed evidence be material to the issue in the trial. 28 In Ex parte Rowe,29 the court held that a witness can even exercise his privilege of silence when the answer would tend to destroy his credibility. It is held in Miskimmins v. Shaver, 30 that the court can not compel the witness to disclose what crime the answer would tend to convict him of, as such disclosure would defeat the very object of the constitutional privilege, but it must appear to the court, from the character of the question, and the other facts adduced in the case, that there is some tangible and substantial probability that the answer of the witness may help to convict him of a crime, and in order to protect a witness from answering upon the ground that his answer may tend to criminate him, it must appear to the court, from the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend that, should he answer, he would be exposed to a criminal prosecution. "Where it is not so perfectly evident and manifest that the answer called for cannot incriminate, as to preclude

25 Simmons v. Nolster, 13 Minn. 236.

26 In re Tappan and Douglass, 9 How. Pr. 395. 27 Samuel v. People, 164 Ill. 379.

28 People v. Mather, 4 Wend. (N.Y.) 229; Lohmann v. People, 1 N. Y. 379; Commonwealth v. Roberts, Bightly, 109; Weldon v. Burch, 12 Ill. 374.

29 7 Cal. 184.

30 8 Wyo. 392.

has

all reasonable doubt or fair argument, the privilege must be recognized and protected."31 Mr. Justice Field, in his separate dissenting opinion in Brown v. Walker, stated the doctrine very effectually when he said: "It is conceded as an established doctrine, universally assented to, that a witness claiming his constitutional privilege can not be questioned concerning the way in which he fears he may be needed to satisfy the court that he is making his claim in good faith, and not as a pretext. To establish good faith on the part of the witness in claiming his constitutional privilege of exception from self-incrimination, where he is examined as a witness in a criminal case, he may be questioned as to his apprehension of criminating himself by his answer, but no further." This. ancient principle of the law of evidence that a witness shall not be compelled, in any proceeding to make disclosure or to give testimony which will tend to criminate him, or subject him to fines, penalties, or forfeitures, is based upon two grounds, one of policy and the other of humanity. Policy is a variable

term. What may be policy at one time and under one set of conditions, might not be policy at another time under another set of conditions, and for that reason a rule of law is given different interpretations at different times and in different jurisdictions. In evidence of this it will be noted that the tendency in modern times is to the doctrine that it is not conclusive that the statement of the witness that his answer to the question or questions will tend to incriminate, although he is judge of the effect of his answer, and is not bound to disclose any facts or circumstances to show how the answer would affect him, for it is within the province of the court to determine under all the circumstances of the case whether such is the tendency of the question put to him, and whether he shall be required to answer. 33

31 People, Taylor v. Forbes, 143 N. Y. 219. 32 161 U. S. 634.

33 Kirschner v. The State, 9 Wis. 140; State v. Duffy, 15 Iowa, 425; Chamberlain v. Willson, 12 Vt. 491, 36 Am. Dec. 356; People v. Forbes, 143 N. Y. 219, 38 N. E. Rep. 303; The People v. Mathers, 4 Wend. (N. Y.) 229; Ballinger v. The People, 8 N. Y. 595; Calhoun v. Thompson, 56 Ala. 166; Richman v. The State, 2 Iowa, 532; Foot v. Buchanan, 113 Fed. Rep. 161; Emery's Case, 107 Mass. 181, 9 Am. Rep. 22; State v. Pancoast, 5 N. Dak. 514; Ex parte Senior, 37 Fla. 1, 32 L. R. A. 135; Ex parte Boscowitz, 31

cisions have not been uniform in their interpretations. There are two lines of decisions construing immunity statutes. One holds that before the constitutional privilege of silence could be taken away by the legislature, there must be absolute indemnity provided; that nothing short of a complete amnesty to the witness-an absolute wiping out of the offense, so that he could no longer be prosecuted for it would furnish that indemnity;43 the other holds that a witness cannot invoke the constitutional privilege of silence whereby statute he is exempted from liability for any offense he may be compelled to give evidence, or from any prosecution, or any penalty or forfeiture, on account of any transaction to which he may testify, and that a statute of this kind sufficiently satisfied the guaranty against self-incrimination. 4 4

In Counselman v. Hitchcock, 45 the immunity statute46 reads as follows: "No evidence given by the witness shall be in any manner used against him, in any court of the United States, in any criminal proceeding." The court held that the statute was not coextensive with the constitutional provision and that the witness was not compelled to answer, because the statute fell short of the constitutional provision, in that the disclosure of the circumstance, source, and means of the offense might be used effectually in a subsequent prosecution against the witness for his participation in that very offense, without using his answers on the witness stand as evi

43 Cullen v. Comonwealth, 24 Gratt. 624: Emery's Case, 107 Mass. 172, 9 Am. Rep. 22; State v. Newell, 58 N. H. 314; Counselman v. Hitchcock, 142 U. S. 547, 35 L. Ed. 1110, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195; Re Scott, 95 Fed. Rep. 518; Foot v. Buchanan, 113 Fed. Rep. 305; Re Shera, 114 Fed. Rep. 207; Re Nachman, 114 Fed. Rep. 995; Ex parte Carter, 166 Mo. 604, 57 L. R. A. 654, 66 S. W.Rep. 540; Lanesin v. Boyden, 160 Ill. 613, 43 N. E. Rep. 781; People v. Butler Struct. Foundry & Iron Co., 201 Ill. 236, 66 N. E. Rep. 349; Ex parte Clarke, 103 Cal. 352, 37 Pac. Rep. 230; People v. O'Brien, 176 N.Y. 253. 44 Floyd v. State, 7 Tex. 215; Ex parte Cohen, 104 Cal. 524, 26 L. R. A. 423, 43 Am. St. Rep. 127, 38 Pac. Rep. 364; Brown v. Walker, 161 U. S. 547, 90 L. Ed. 819, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644. (This case modifies Counselmen v. Hitchcock, 142 U. S. 547, 35 L. Ed. 1110, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195, and practically settles the federal law as to the question.) State v. Morgan, 133 N. Car. 743; Inters. Com. Com. v. Baird, 194 U. S. 25, 4 L. Ed. 860, 24 Sup. Ct. Rep. 563; La Fountaine v. Underwriters, 83 N. Car. 132; In re Briggs, 133 N. Car. 743, 47 S. E. Rep. 403.

45 Supra.

46 Rev. St. U. S., § 860 [Comp. St. 1901, p. 661].

7

dence or direct admissions against him, whereas, in Brown v. Walker, congress had, under the intimation in Counselman v. Hitchcock, 48 amended the law by ch. 83, Act Feb. 11, 1893, 27 Stat. 443 [U. S. Comp. St. 1901, p. 3173], which provides that the witness required to testify in the cases designated should not "be prosecuted or subjected to any penalty or forfeiture for or on account of any information, matter or things, concerning which he may testify," the court held this statute was absolute immunity against prosecution for the offense to which the question related, and deprived the witness of his constitutional right of silence. In State v. Jack, 49 the court held that where the immunity afforded by the statute is co-extensive with the constitutional privilege, it is sufficient protection for a witness to prevent him from invoking the constitutional privilege of silence. There are two opinions that have been recently rendered under similar conditions by the Supreme Court of Wisconsin, in which a peculiar situation has been brought about, in that one of the opinions, State v. Rudolph, 50 follows the law as expounded in Walker v. Brown," 51 while the other, State v. Murphy, 52 follows the law as expounded by Judge Humphrey in the so-called Packers' Case. In order to explain the situation I will quote from Justice Marshall's independent opinion: "The paragraph in the main opinion, commencing with, we do not adopt, etc., which immediately follows the quotation from the Packers' Cases, was added to such main opinion after the independent opinions were filed, so as to remove from such main opinion any indication contained therein of indorsement by the court of the quoted doctrine. I concur in the answers to the questions certified for decision, but dissent most emphatically, from the general exposition of the immunity statute which precedes the treatment of the particular points involved." *** “I had an idea when the opinion was handed down, that it contained what would be considered by trial courts, as it seems will be the case, a most emphatic approval of the very

47 Supra.

48 Supra.

49 69 Kan. 387, 1 L. R. A. (N. S.) 167, affirmed by Sup. Ct. U. S. Nov. 27, 1905.

50 107 N. W. Rep. 466. 51 Supra.

52 107 N. W. Rep. 476.

extreme view. I venture to say, expressed by Judge Humphrey in the Packers' Cases, 5 3 and indicated in the quotation from his opinion of the federal immunity statute on which ours was modeled. I did not appreciate that the court was committed to the idea that such statute was intended to, and in fact does, go very much further than the constitutional guaranty against compulsory self-crimination; that the purpose was to go so far beyond the scope thereof as to not only secure the evidence which the privilege of silence would otherwise obscure, but, by affording the offender a sort of gratuity, obtain disclosures which, but for moral turpitude he could be compelled to make any way; disclosures of mere circumstances so remote as not to fall within the scope of self-incriminatory evidence. Nothing could have been further from my thoughts than that the legislative purpose was to make the inducement [to testify attractive' by holding out a substitute for the constitutional privilege, and a bribe, so to speak, as to matters beyond its scope as well. I wish, as emphatically as practicable, to express my dissent from any such extreme view.

Under the circumstances I shall not attempt to discuss the immunity statute, giving reasons and authorities for the views I entertain. Some other occasion will doubtless be presented for further consideration of the matter. That I am persuaded to believe from the facts, in part, as I understand it, that there is a radical conflict between the exposition of the law, from which I dissent, and that in the cases decided with it, opinion by Justice Siebecker, with which I concur."

In conclusion, Justice Marshall gives an excellent summary of the purport and construction of the statute, which I reproduce here: "(1.) The statute does not wipe out the offense about which the witness might have refused to answer. It creates a bar to a prosecution for the offense. The offense with its attendant moral turpitude is left just the same, but by force of the statute the public is remediless.

(2.) The statute is not broader than the constitutional guaranty for which it was intended to be a 'substitute.' The very idea of a substitute suggests the limitation of one as that of the other. In other words, that they are equivalent, one being exchanged, by 53 142 Fed. Rep. 808.

force of the law, for the other. (3.) The statute does not immune because of evidence given, other than that of a self-incriminating character; and as without the statute would be obscured by the constitutional privilege of silence. (4.) For the statute to operate there must be evidence under real compulsion. That is, there must be coercion to the extent of the witness being called to testify under such circumstances that he would be liable to punishment, as standing in defiance of the court if he refused to do so. In that situation only does the law relieve him from the necessity of expressly claiming his privilege. Until the law then lays its hand on the party, so that resistance would be a defiance of the court, the statute does not intervene. (5.) In the term, 'no person shall be prosecuted or subjected to any penalty for or on account of any transaction, matter, or thing, concerning which he may testify or produce,' etc., the term 'transaction, matter, or thing,' has reference to any of the designations, to an event of a criminal character. Each is one of a species, a synonym, in great part, for either of the others. The familiar rule, noscitur a sociis applies. The evidence spoken of is evidence of an incriminating character, as to a transaction giving rise to a cause of action to punish for a crime, or a thing giving rise to such cause, or a matter giving rise to some such cause, in which the witness participated. It has no reference to any remote circumstance, not in itself a basis for such a cause. In other words, the law contemplates only a situation as regards an event, whether denominated a transaction, a matter, or a thing, where under the constitutional privilege of silence, the person compulsorily called to testify might refuse to speak, but the removal of the precise danger which such privilege was designed to shield him from. So the statute becomes active whenever and wherever the constitutional privilege would otherwise operate, and its activity ceases when that would otherwise not intervene. It is a substitute and that only."

Construction of Immunity Statutes.-The construction of immunity statutes rests upon these grounds: First, the immunity must cover the prosecutions under the federal law or the state law as the case may be; second, the immunity must be conditional on the truthfulness of the disclosure, and third the