§ 43.05 Accused's Privilege at Trial

• Jurisdiction: United States

§ 43.05 Accused's Privilege at Trial

A defendant in a criminal case cannot be compelled to be a witness, which means the prosecution cannot call the accused as an adverse witness in the government's case-in-chief.³⁹ If the defendant voluntarily takes the witness stand in the defense case-in-chief, the privilege against self-incrimination is waived. The Supreme Court observed: "A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him."⁴⁰

[A] Scope of Waiver

The extent of the waiver, however, is not as clear. One position is that the defendant has waived the privilege to all relevant matters, including matters affecting credibility. In contrast, a second position limits the waiver to those matters about which the accused testified on direct examination. As the drafters of the Federal Rules noted, the constitutional issue is not resolved by the evidence rule—Rule 611(b).⁴¹ As a matter of federal constitutional law, however, the issue remains somewhat clouded.⁴²

As for credibility, the Supreme Court has a "longstanding rule that when a defendant takes the stand, 'his credibility may be impeached and his testimony assailed like that of any other witness.'"⁴³ Yet, Rule 608(b), which governs impeachment with specific instances of conduct that reflect untruthful character, contains a provision addressing this issue: "By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness."⁴⁴

[B] Comment upon Failure to Testify

In Griffin v. California,⁴⁵ the Supreme Court held that the Fifth Amendment prohibits the use of an accused's failure to testify as evidence of guilt. The Court wrote:

[Comment on the refusal to testify] is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused's knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence

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