The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-08-19
INSTRUMENTATION.
Shall Persons Now he Compelled 90 TIES.
tify Against Themselves?

| vision OF the New York Constitution the
| privilege against self-incrimination shall
be repealed. at least In so far as cor
porate or public officers are concerned.
The Constitution now provides. Article
| l., Section 6:
| No person shall be compelled In any crimi-
nal case TO be a witness against himself
AS construed this protects any private
| individual or any corporate or public off,
| Ger called as a witness In any civil or
criminal proceeding or public investigation
| from being compelled to answer any ques-
ton which would tend to incriminate him,
unless by statute or pardon the witness
| shaN have been given complete Immunity
| concerning any matter as to which he
| may give testimony. Thus we see that
| where any crime or any corporate or
| political malfeasance in office is In ques-
| ton none OF the parties concerned-in
short. none of the parties most likely to
know something about the matter-csn be
| questioned against his will without ex-
empting him from prosecution.
| This provision having OF late years
become a stumbling block. especially to
the prosecution OF corporate and politi-
cal corruption. resort has been had to
| clrcumlocution that Is. statutes have
been passed giving witnesses immunity
| In case they testify, and by this means.
while some of the guilty escape. others
are convicted Again. practice has
| grown up among our District Attorneys
of putting strong pressure on witnesses
to have them voluntarily" waive their
| constitutional privilege against sclf-in-
| elimination. common and effective
method OF applying such pressure Is to
let the witness understand that IL he
refuses to waive immunity It Will be
| represented through the press that he
refused because he was guilty. refer
to this unfortunate state of affairs by
which. after having given constitu-
tlonal privilege. we have at once gone
to work to circumvert II by more or less
| questionable means In order TO Illustrate
that the real sense OF the community. as
| reflected by the decisions OF the courts,
the statutes and the practice OF our on
clals. IL hostile to the maintenance OF
the provision protecting witness from
discriminating himself
Furthermore, there is nothing very
sacred In this constitutional provision
| nor Is II very ancient II does not date
from Magma Charta or any other great
bulwark of English liberties. II was not
originally evolved as a principle OF the
common law; and Mt the time OF our
separation from Great Britain was even
there n comparatively modern doctrine.
and Is said to have been unknown at
least In one OF our colonies (Massachu-
setts) no recently as one hundred years
prior to such separation. The privilege
was born in England out OF the struggle
between the ecclcsia stlcal and lay courts
and was developed under the S,uarts
In it's origin It in no way denied the
right OF common law court to compel
witness to incriminate himself, but
merely concerned tho question OF how
far an ecclesiastical court could compel
witness to testify: and 1t was only a
comparatively short time prior to our
Revolution that the privilege began to be
developed according to It's present under
standing.
The doctrine Is entirely foreign to tho
| tai lao al tafn nd
, has been said. entirely unknown to the
Roman law. ON the Continent "a far
more common sense system OF criminal
/ Investigation is pursued. Immediately
upon It becoming known or suspected
that a crime has been committed, an
official. who in English we might call
! an investigating magistrate, at once takes
charge and summons all persons who In
, the natural course of events are likely
TO have knowledge of the crime. Thus
there is promptly collected all the in
formation bearing on the matter, and
the witnesses. including any suspected
person. are at once committed to their
stories before they have had time to think
up Ingenious explanations or to be
coached by shady lawyers on the
. other hand the right to privacy OF ind-
I viduals who are innocent OF any partic-
; patton In the crime is protected. since
their statements are not necessarily made
public, except in no Ear az II may become
: necessary TO the subsequent prosecution.
Not only In our rule against self-in-
elimination a hindrance 10 Justice, but II
fails to protect the right Of privacy, since
a witness can be compelled to answer any
, question. however degrading to himself
J or his family the answer may he. pro-
! vided only that II does not convict him
/. OF crime.
= but whether or not the privilege against
characterization shall be taken away
> from individuals, II would seem hardly
, to be open to dispute that a person who
. accepts a corporate or public Office ought
at all times, in any civil or criminal pro-
ceedne, to be compelled to testify freely.
t Nothing would more tend toward official
e rectitude than an officials knowledge
that at any time his conscience may be
probed.
=. captain tell the people how he made his
money? Why should not "A State official
= he compelled TO tell the people how ne
has managed his office? Why should no,
an officer of a corporation be compelled
to tell his stockholders how he ha,
financed their company or the people how
he has obeyed their lsws7 Whatever
u may he said In justification OF the privi
lcge, II was certainly never Intended &c
~ shield an official against the public wrath
a II II had any purpose II was to shield
/, | the citizen against official oppression
. But to-day II has come practically to hav,
but one purpose, to shield the dishonest
-. corporate or public officer
W Personally. l would repeal the privi
, lcge altogether but this Is probably toe
= long n step at the present time. so
y suggest that the privilege he removed
y only from corporate and public officials
e giving, however, the right to such ON
e cials In any public Investigations (which
y unfortunately. are sometimes conducted
:, for partisan purposes) to make unde
q oath and file an explanatory writer
: statement. All the requirements OF fai
y play would be fulfilled by allowing tn,
r. filing OF such Il statement In writing anC
& II II were not true II would constitute
the crime OF perjury and would no doub
10 be pulled to pieces In any event II woul
n necessarily be part OF the record an
e could always be referred to AS such.
ie | submit the following proposed amend
ment to Article l., Section g. OF the Con
II stitution. the new matter being printed II
| italics:
Dt No person shall be subject to be twice pu
In Jeopardy for the same offence; nor shal
he he compelled in any criminal case TO h
witness against himself; srcept that n
person holding or having heid a corporate O
,r public office or position shall be ercused fro,
he festUvin0 IN any criminal proceeding or