The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1876-08-09
shall Prisoners Testify ?

bill fixing rules of practice in regard to evidence,
and which includes provision allowing parties to
testify in both civil and criminal has been in
troduced in the Legislative Assembly and is now IN
der discussion. In 1872 bill with similar provis-
ion defeated probably account Of the proposed
reform in criminal practice There is but little doubt
but that bill for allowing parties in civil to
testify would have passed if had been offered by it.
self. Again are these two somewhat distinct and
radical reforms proposed in one bill 1t may be said
that the principles of both kinds of the same
yet although this is largely true the circumstances of
the application Of these principles widely differ
ent in criminal from what they in civil cases.
that it is impossible to do justice to the question of
the proposed change in either case when combined
with the other in one motion.
The question of allowing prisoner to be witness
for himself is of great Importance not only to the
public but parties themselves and cannotbe safely
left follow the settlement of the similar question in
civil cases.
The bill provides for the prisoner to be witness
for himself not lie his counsel decides is most
prudent, and contains warning clause that his refds-
al to testify shall not be construed against him. This
plan has a, first sight the appearance Of great paus
bility, but examination find strong reasons to
doubt its policy 1t is hardly practical matter to
make witness in his own out Of prisoner. As
a rule the majority Of prisoners guilty Of the Of
fences charged and the proposed change gives to a
class OF men who are VIGOROUSLY without principle
or conscience the strongest temptation to perjury,
which they would not be slow TO take advantage Of
On the other hand the discretion given by the proposed
Law to the defence places the counsel in most pain
full situation. " BY calling the prisoner he might
expose himself te the iuputation Of acit confession
Of guilt, by calling him be might expose innocent
to cross-examinatiOn which might make him
look guilty" The provision Of the statute that the
Il. 81.
vorably, would be insufficient the jury nd the
court from unfavorable impressions. They could not
help such impressions if they tried, and this fact is
enough in itself to condemn the proposed change in
criminal trials. especially the opposing advantage
is only testimony that generally the jury will not be-
eye.
agree with those who favor this change, that the
present system is imperfect and needs modification,
but not in the way proposed. UuprofessiOnal think
ers vii easily the hardship Of sealing the tongues
of those who Of all others best informed and most
able clear up the apparent contradictions of evil
dence frequent in criminal But how shall this
be broug about il prisoners not to be introduced
witnesses? The practice Of interrogatug prisoners
the evidence against them is in was tue rule in
England for centuries. This old practice With some
notifications, contains the solution to this question
The proceedings would be something follows AT
the prem mary examination after the evidence gainst
the prisoner is taken and before cOmmitta he is gues
toned by the committing judge in open court on the
evidence against him, the questions and answers be-
ing recorded in full and up with the dispositions
- At the trial." says Fitz James Stephens who has
treated clearly and fully this subject in his mastery
work the criminal laws of England. Z" think the
counsel for the ought to interrogate the prs-
at the end Of his and before the prisoners
defence. l would allow him to ask leading questions
and would allow the counsel for the prisoner to re.
examine, and the judge and jury to interpose any
questions they pleased" And he Furthermore says
- the objection TO making it the duty of the judge
examine him is, that it is of the first Importance
that the prisoner should be carefully protected gainst
anything like intimidation. The authority of the
court and the sentiment Of the public would eeeual
ly protect him against anything of this sort on the
part of the counsel for the crown, but one could
protec: him against the judge" The prisoner
would not be eompellable to answer, but would
reply to what questions he chose. l think it will be
readily that such Il system would favor the nc.
quta of the innocent and the conviction of the guilty
if this is so, it is unanswerabe argument for it.
Simply process for arriving the truth Of mat
ter, it is superior to the proposed change in that it
draws from the prisoner all the information is will
ing to give, while in the other prisoner who is
ready to testify to part Of his information will re-
fuse go onto the stand to save him self from being
compelled to testify other points, and the whole
Of his information is lost Il seems reasonable and
humane method to allow charged with offence
against the laws, an opportunity Of explaining cir
cumsances Of suspicion which the evidence has thrown
around him. Such system is strongly analogous to
the practice uequity courts where the defendant is
allowed to file his replying each and every
item Of the bill Of complaint and to add other explain
atory matter in evidence of the complaint without
being exposed to the demonstrations of the witness
stand and is just necessary for the proper security
of the prisoner that is for the proper defence Of he
respondent. s. b. Dole.