did not confront the courts in this context for some time. When this question was ultimately reached, a body of federal authority developed attributing constitutional dignity to the limited rule.

Tucker v. United States 13 is an example from this line of precedent. In Tucker, the defendant and others were charged with using the mails to promote fraud. The indictment alleged that they mailed newspapers containing advertisements instrumental to a fraudulent scheme at a United States Post Office. It was essential for the government to prove that a fraudulent scheme existed and that in the execution thereof the defendant caused the advertisements to be inserted in the paper. At trial the defendant's direct testimony went wholly to refuting the existence of any fraudulent scheme; he at no time went into the issue concerning the insertion of ads in the newspaper. On cross-examination he was asked if he inserted the advertisements as charged. Over objection that such question was outside the scope of the direct examination and therefore compelled the defendant to be a witness against himself, the trial court required the defendant to answer. After citing pertinent decisions of the Supreme Court, the court of appeals reversed in terse language:

The questions asked the witness Dudley Tucker on cross-examination were clearly outside the scope of his direct testimony. They had reference to the second element of the offenses charged, while his direct examination was limited to a refutation of the first element. The questions on cross-examination did not in any way test the truth of the direct examination; they did not seek to explain or modify the same; they were asked for the sole purpose of proving an independent element in the government's case. In eliciting the answers to the questions propounded to Dudley Tucker with reference to the insertion of the advertisements, the government made Dudley Tucker its witness, and compelled him over seasonable and proper objection to be a witness against himself, in violation of the Fifth Amendment to the Constitution. There is no higher nor more important duty resting upon the courts than to see that the citizen is fully afforded the rights and immunities guaranteed to him by the Constitution.14

As the court observed during its discussion, the facts surrounding the historical origin of the privilege against self-incrimination shed little light on this problem. The history of the privilege extends into the early years of the common law to a time when an accused could not testify on his own behalf. The first American statute according the defendant capacity to give evidence was not enacted until 1864.15 In 1878 Congress, by statute, provided that a person charged with a federal offense could be a competent witness at his trial.16 Following this grant of capacity to testify, it became relevant to explore the protective boundaries of a defendant's privilege at trial. The Tucker court reasoned that the federal exclusion of compulsory self-incrimination prohibited forced disclosure on issues foreign to the defendant's direct testimony:

If there is good reason why a defendant should not be compelled to be a witness against himself, there ought to be equally good reason why, if he has testified voluntarily upon one issue, he should not be compelled to testify against his will concerning matters wholly unrelated to that issue, which would not be within the scope of proper cross-examination if he were an ordinary witness.17

The above decision relied in part on the prior case of Harrold v. Territory of Oklahoma, 18 which construed the defendant's privilege in this way:

He may not be compelled in any criminal case to be a witness against himself." When he testifies as a witness he waives this privilege of silence and subject himself to cross-examination and impeachment to the same extent as any other witness would subject himself thereto in the same situation, but no farther. He may be cross-examined upon the subjects of his direct examination, but not upon other subjects. . . . An accused person who testifies to the single fact that a bill of sale or a deed was signed by the grantor does not thereby waive his privilege to refuse to testify upon every other material issue in his case. He

15 See Note, "Griffin v. California," 70 Dick. L. Rev. 98, 100 (1965).

16 20 Stat. 30 (1878), as amended 62 Stat. 833 (1948), 18 U.S.C. § 3481 (1964).

17 Tucker v. United States, 5 F. 2d 818, 822 (8th Cir. 1925). It appears that cross-examination only on matters relevant to the direct operates to limit interrogation of the accused much more than cross-examination on all matters relevan: to the issue. Wigmore expressed preference for broad interrogation, and for the view that voluntary taking of the witness stand by an accused constitutes a waiver of the privilege against self-incrimination as to all relevant matters. 8 Wigmore § 2276(2), at 459-62. Another view limits the waiver to matters testified about on direct examination. Wigmore urges that this latter view be interpreted to produce a waiver identical in scope to the broad waiver rule by using the theory that the subject of the direct examination of an accused is the whole fact of guilt or innocence. Id. at 467. The Tucker case appears to reject such an application.

is 169 Fed. 47 (8th Cir. 1909).

waives his privilege of silence upon the subjects relative to which he testifies, but upon no other.19

These cases agree that a full and fair cross-examination of the witness is an absolute right. But when the witness has not employed his testimony to present evidence on a particular issue, it is error to cross-examine him on that issue. The decisions reject as constitutionally improper the proposition that an accused waives his protective privilege on every material issue in the case when he testifies. Other federal cases have been added to the above.20 A recent court of appeals decision asserts that the extent of the accused's waiver of the privilege at trial is determined by his direct testimony, citing two Supreme Court decisions as supporting its holding.22 Therefore, it is appropriate at this point to turn to the proclamations of the high Court relating to the problem. The Court has on numerous occasions made clear its requirement that cross-examination be confined to the subject of the direct examination. As indicated above, the question is whether the Court is thereby expressing a concept of constitutional proportions.

Of the cases which consider the problem, Fitzpatrick v. United States 23 is one of the most significant. The defendant, convicted of murder in the federal District Court for Alaska, argued that his privilege against self-incrimination had been violated by the trail court's failure to restrict the cross-examination when he testified.24 After reviewing the record, the Supreme Court, holding that the cross-examination of the accused did not exceed the direct, affirmed the conviction. In so doing it set forth the constitutional guidelines governing a defendant's waiver of the federal privilege at trial:

Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine him upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the alleged crime. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts. .. If the prosecution should go farther and compel the defendant, on cross-examination, to write his own name or that of another person, when he had not testified in reference thereto in his direct examination, the case of State v. Lurch, 12 Oregon 99, is authority for saying that this would be error. It would be a clear case of the defendant being compelled to furnish original evidence against himself. State v. Saunders, 14 Or. 300, is also authority for the proposition that he cannot be compelled to answer as to any facts not relevant to his direct examination.25

In Fitzpatrick the defendant's waiver apparently was complete as to matters stated in the direct examination, and cross-examination could fully explore the details of matters previously covered. But the waiver was also limited by the direct examination. Requiring an accused to respond to cross-examination ques

1 Id. at 51.

20 In Wilson v. United States, 4 F. 2d 888 (8th Cir. 1925), a federal prosecution for illegal possession and sale of liquor, the direct examination of the defendant did not inquire into her alleged possession of alcohol. Over objection, questions were propounded to the defendant on cross-examination outside the scope of the examination in chief. The court reversed defendant's conviction and in so doing left no doubt that the reversal was based on constitutional grounds:

The defendant, if the witnesses are to be believed, is guilty; but she herself, by grossly improper crossexamination, wholly outside of her examination in chief, was made to disclose facts showing her possession of beer, alcohol, and mash. . .

Some of this cross-examination may be excusable, upon the ground that the government is not to be confined in cross-examination to a mere categorical reiteration of the testimony of a defendant given in his examination in chief (State v. Miller, 156 Mo. 76, 56 S.W. 997; State v. Corrigan, 262 Mo. 195, 171 S.W. 51); but the greater part of it is inexcusable upon any ground consistent with the rules that a defendant is entitled to a fair trial, and that he may not be compelled to be a witness against himself. Id. at 889. [Emphasis added.] See De Rose v. United States, 315 F. 2d 482, 485-86 (9th Cir. 1963); Ziegler v. United States, 174 F. 2d 439, 446-47 (9th Cir. 1949); Madden v. United States, 20 F. 2d 289 (9th Cir. 1927); United States v. Barker, 11 F.R.D. 421, 422 (N.D. Cal. 1951). See also Semler v. United States, 332 F. 2d 6, 7 (9th Cir. 1964); Graul v. United States, 47 App. D.C. 543, 550 (1918) (cross-examination must relate to the subject matter of the examination in chief; if new matter, the witness may claim privilege against selfincrimination and it must be allowed).

21 United States ex rel. Irwin v. Pate, 357 F. 24 911, 915-16 (7th Cir. 1966).

22 Fitzpatrick v. United States, 178 U.S. 304, 315 (1900); Brown v. United States, 356 U.S. 148 (1958). 23 178 U.S. 304 (1900).

24 Id. at 314-15.

26 Id. at 315-16.

tions covering matters wholly outside the examination in chief, albeit material to the case, would improperly compel him to be a witness against himself.26

Subsequently, the Supreme Court considered the permissible boundaries of cross-examination in Powers v. United States.27 The defendant protested that the cross-examination at his criminal trial exceeded the scope of the direct examination. The Government agreed that three prior Supreme Court cases had intimated that a testifying defendant's waiver of his fifth amendment privilege extended only to matters explored on direct examination.28 It was argued, however, that the cross-examination of the defendant here was within the field of the direct. The Court so found, stating that a defendant who takes the stand on his own behalf is required to submit to cross-examination concerning matters pertinent to the examination in chief.29

At the time of the Powers case, the states were splitting into different camps with respect to the scope of waiver of the privilege by an accused who testified in his own behalf. In addition, particularized applications developed among jurisdictions applying the same general waiver rule. This trend was encouraged by the fact that subsequent Supreme Court opinions, although still citing the case, appeared to turn away from the language found in Fitzpatrick.30 and several 26 This is the construction placed upon Fitzpatrick by the Tucker and Harrold cases. See text accompany. ing notes 13-19 supra.

Justice Brown in the Fitzpatrick opinion approved the Oregon rule, which held that freedom from compulsory self-incrimination was violated when cross-examination of the accused was extended beyond the facts to which he had originally testified. As stated in State v. Lurch, 12 Ore. 99, 103 (1885), statutes allowing the accused to be a witness do not compel him to be a witness against himself:

[It would be a great violation of good faith to permit the State to take advantage of his situation and change the trial into an inquisition. The cross-examination in such cases must be strictly confined to the facts testified to by the accused. The law throws around him in such case an immunity which ought to be sacredly maintained.

Ibid.

27 223 U.S. 303 (1912).

28 The Attorney General's brief (see id. at 309) referred to a general dispute over whether the waiver of the privilege by a testifying defendant extended broadly to all things relevant to the issue as held in certain State cases, or was limited to the scope of proper cross-examination as was intimated in Sawyer v. United States, 202 U.S. 150, 165 (1906); Fitzpatrick v. United States, 178 U.S. 304, 314 (1900); Spies v. Illinois, 123 U.S. 131, 180 (1887).

29 Powers v. United States, 223 U.S. 303, 315 (1912).

30 Raffel v. United States, 271 U.S. 494 (1926) contained sweeping language to the effect that a witness' waiver is not partial but complete when he testifies. A question occurs as to whether the waiver is complete respecting matters relevant to the testimony on direct examination only, or the entire case. Raffel was indicted for conspiracy to violate the national prohibition act. At trial, he did not offer himself as a witness, and the jury failed to reach a verdict. He was retried and, testifying in his own behalf, was asked questions by the court which required him to disclose that the had not testified at the first trial and explain why he had not.

On review, the Supreme Court decided that Raffel's privilege against self-incrimination had not been violated. The Court deemed the trial court's questions germane to statements already made by the defendant in direct examination. While the Court referred broadly to the proposition that a defendant waives his privilege by testifying, the decision contains other indications to the effect that proper cross-examina.ion extends only to matters opened up on direct. This conclusion is based upon the Court's statement that when a defendant "takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined." Id. at 497. It is abundantly clear that the cross-examination of other witnesses in federal trials at the time of the Raffel decision extended only to matters brought out in direct examination of such witnesses. The decision cites Tucker v. United States, 5 F. 2d 818 (8th Cir. 1925) as authority for the appropriate rule. See text accompanying note 14 supra for the rule announced in that case. At any rate, much of the effect of Raffel may have been vitiated by two later cases. See Grunewald v. United States, 353 U.S. 391, 415-24 (1957); Stewart v. United States, 366 U.S. 1 (1961); cf. State v. Conway, 328 Mo. 580, 154 S.W.2d 128 (1941).

For lower federal court decisions which incline to a position of broad waiver, see, e.g., Bolling v. United States, 18 F. 2d 863 (4th Cir. 1927); Le More v. United States, 253 Fed. 887 (5th Cir. 1918), cert. denied, 248 U.S. 586 (1919). See also Johnson v. United States, 318 U.S. 189 (1943), and Caminetti v. United States, 242 U.S. 470 (1917), dealing with the ancillary problem of comment on the partial silence of an accused. An of an accused. An interesting question is posed in Maguire, Weinstein, Chadbourn & Mansfield, supra note 6, at 813:

Incidentally, what if any influence may the Griffin decision be expected to have upon the rule of Caminetti v. United States, permitting adverse comment as to failure of a criminal defendant, who does take the stand and give cautiously limited testimony, to say anything about vital aspects of the case clearly within his personal knowledge? In approaching this question, is it essential to know the applicable rule on scope of cross-examination?

Two recent cases considering these issues are People v. Ing, 65 Cal. 2d 650, 422 P. 2d 590, 55 Cal. Rptr. 902 (Dist. Ct. App. 1967), and People v. Perez, 65 Cal. 2d 662, 422 P. 2d 597, 55 Cal. Rptr. 909 (Dist. Ct. App. 1967). Ing was a rape prosecution. Evidence of the alleged rapes committed by the defendant was offered to show a common scheme or plan. On direct examination, the defendant denied committing the rapes charged. but made no reference to the other alleged offenses. In Perez the defendant was charged with four counts of first-degree robbery. On direct examination, he offered an alibi with respect to counts 1 and 2, but did not testify with respect to counts 3 and 4. In both cases the court stated that cross-examination concerning the offenses about which defendant had refused to testify would have been permissible, and held that the prosecutor's comment on defendant's silence did not violate the privilege against self-incrimination. In so doing, the court impliedly equated the permissible scope of comment on defendant's failure to testify with the permissible scope of cross-examination.

observers concluded that a defendant waived his fifth amendment privilege completely when he testified.31

The matter appears to have remained open for several years. Then in 1958 the Supreme Court again had occassion to discuss the problem in the important case of Brown v. United States.32 In Brown the defendant took the stand in a denaturalization proceeding and on cross-examination by the Government refused to answer questions respecting communist associations. Analyzing the constitutional privilege in this setting, Justice Frankfurter adverted to Fitzpatrick v. United States and pointed out that a defendant has no right to set forth all the facts in his favor without laying himself open to cross-examination on those facts.33 The opinion contains relevant comments which seem to indicate that waiver of the fifth amendment privilege extends to matters opened up by the party on direct examination, but perhaps only that far. In this connection, Justice Frankfurter's summary of the law applicable to criminal defendants who testify in their own behalf is instructive:

Our problem is illumined by the situation of a defendant in a criminal case. If he takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant crossexamination. "[H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts." Fitzpatrick v. United States, 178 U.S. 304, 315; and see Reagan v. United States, 157 U.S. 301, 304-305. The reasoning of these cases applies to a witness in any proceeding who voluntarily takes the stand and offers testimony in his own behalf. It is reasoning that controls the result in the case before us.34

The above passage indicates that the reasoning of the Fitzpatrick decision is controlling. But in addition to the reliance on Fitzpatrick, another feature of the Brown opinion is striking. The decision emphasized that the witness himself, if he is a party, determines the area of disclosure, and therefore of inquiry.35 It would appear that a party can only control the area of disclosure so referred to when the cross-examination is confined to the direct examination. Wide-open cross-examination of the accused may range well beyond the scope of the direct, and beyond the party's control.

Commentators have summarized Brown as espousing a constitutional rule of limited waiver.36 It is interesting to note, moreover, that Brown was recently cited by the Seventh Circuit as imposing constitutional limitations on cross-examination in criminal prosecutions.37

a See 8 Wigmore § 2276(2). But see Morgan, "The Privilege Against Self-Incrimination," 14 Minn. L. Rev. 1, 42-43 (1949): The extent to which a person waives his privilege by testifying is the subject of conflicting decisions. In the Federal Courts, the decisions of the Supreme Court are far from clear, but they imply that the accused and every other witness is subject to cross-examination upon all matters relevant to the content of his direct examination.

32 356 U.S. 148 (1958).

33 Id. at 155.

34 Id. at 154-55.

35 Id. at 155. It is noted that courts applying a narrow theory of waiver nonetheless permit impeachment as an incident of the direct examination. See note 4 supra. This possibility appears to give pause to dissenting Justice Black, who scrutinizes the majority statement that it is the defendant, as a witness, who determines the area of disclosure and therefore of inquiry:

I do not believe this assumption is correct. While it is true that a party can determine the area of his own disclosures on direct examination, the scope of permissible cross-examination is not restricted to the matters raised on direct but may include other and quite different matters if they will aid the court or jury to appraise the credibility of the witness and the probative value of his testimony. Id. at 159 (dissenting opinion). Justice Brennan also dissented, and commented that a rule decreeing waiver of privilege by merely taking the stand developed as a historical corollary of the fact that the accused could not be called as a witness. The Brennan dissent does not explore the scope of waiver, but should this dissent be construed as indicating complete waiver by an accused on all material matters regardless of the scope of direct examination, such construction would appear to miss the distinct point made by the majority. See Morgan, supra note 31, at 42-43. A careful annotation of the problem contained in the Brown case appears in 72 A.L. R.2d 818, 833, 841 (1960).

36 E.g., Note, 37 Texas L. Rev. 343, 344 (1959). See also "The Supreme Court, 1957 Term," 72 Harv. L. Rev. 77, 177 (1958), wherein the Brown case is summarized as holding that a defendant who voluntarily takes the stand waives the privilege against self-incrimination to the extent of cross-examination on matters raised by his own testimony on direct.

37 United States ex rel. Irwin v. Pate, 357 F.2d 911, 915–16 (7th Cir. 1966). In reviewing a criminal conviction, the court carefully noted that the cross-examination of the defendant who testified was related to his direct testimony. The court went on to state:

In a criminal case, if a defendant voluntarily takes the stand to testify in his own behalf, his testimony may be impeached and he may be cross-examined. The extent of the waiver of the privilege against self-incrimination is determined by what the defendant's testimony makes relevant for cross-examina

tion. Id. at 915.

These federal decisions contain distinct indications to the effect that a limited cross-examination of the accused is required by the fifth amendment. Much of the language militates in the direction of extending the waiver of the constitutional privilege to matters opened up on direct examination, but not beyond. As stated by one writer: "In the absence of special statutory provision, courts following the federal rule hold that a defendant in taking the stand in a criminal case waives his constitutional privilege not to testify to the extent that the federal rule permits cross-examination." 38 Under this view, the waiver extends only to matters touched upon in direct examination, since this is the extent to which the federal rule permits cross-examination. Another commentator concluded: "The constitutional privilege against self-incrimination and the statute of 1878 permitting the defendant to testify have been construed as requiring a restrictive cross-examination." 39

Of course, other observers summarize the prevailing law differently, often citing the broad language of those cases decided before Brown. Well after those decisions were history, however, a leading American commentator concluded that Supreme Court decisions implied that the accused was subject to cross-examination upon all matters relevant to the content of his direct examination.40 Clearly, the reviewed cases raise serious questions as to the protective scope of the federal privilege at trial, and the limits which the constitutional guarantee may impose upon cross-examination.

IMPLICATIONS FOR STATE PROSECUTIONS

The contrariety of views respecting an accused's waiver of privilege " at tria indicates the need for clarification by the Supreme Court. With the sweep of the federal privilege in state trials now governed by federal standards, guidance for the states seems essential. In addition, the articulation of an approved waiver rule would be instructive for those concerned with drafting new rules of evidence for state or federal practice. It may be argued that clarification is unnecessary because the controlling principles regarding scope of waiver have been definitively announced. But there are protagonists on both sides of the issue, stating either that the broad or the narrow rule has been firmly established.42 If limited crossexamination is essential to fair trial, as indicated by certain federal cases, this should be made clear.

35 Note, 24 Iowa L. Rev. 564, 569 (1939).

43

39 Orti ld, "Examination of Witnesses in Federal Criminal Cases." 4 Ariz. L. Rev. 215, 240 (1962). See also 4 Jo es, supra note 4, § 928, at 1741: "There is reason for confining the cross-examination of a defendant to the matters wie have been elicited by the direct examination because, to compel answers to other questions, may be deemed a violation of the constitutional provision which exempts him from testifying against hims lf;" Burby, Law Refresher 704 (1946): “According to one view, the waiver extends to testimony with respect to any material fact. Accor li g to the weight of authority, however, the waiver extends only to matters touched upon in the direct examination;" Orfield, "The Privilege Against Self-Incrimination in Federal Cases," 25 U. Pitt. L. Rev. 503, 553 (1964).

The doctrine of limited waiver is recognized elsewhere in the law of evidence. Most of the authorities agree that if the accused takes the stand for the purpose of testifying on a preliminary question, such as the volu itariness of a confession, this is not to be taken as a complete waiver. Many cases limit the waiver to the particular issue, because it is felt that to do otherwise would penalize the defen lant for testifying. McCormick $131. Se also, Maguire, Evidence of Guilt §2.082(2) (1959); Model Code of Evidence rule 208, comment (1942). The discussion contained in the body of this article deals with testimony on the merits, as opposed to testimony on preliminary matters.

In addition, it is noted that testimony in one proceeding, or one stage of a proceeding, which testimony incorporates the fullest disclosure, does not waive the privilege in a later proceeding or stage. Maguire, supra, § 2.032(1). 40 See Morgan, supra note 31, at 42-43.

41 On the difference between the scope of the self-incrimination privilege and the scope of waiver, see note 7 supra.

42 To the effect that limited waiver may be the controlling rule, see Quick, "Self Incrimination Under the Uniform Rules of Evidence," 3 Wayne L. Rev. 1, 20 (1956); Morgan, supra note 31, at 42-43; Orfield, "Examination of Witnesses in Federal Criminal Cases," supra note 33, at 210; Burby, supra note 39; Note, 24 Iowa L. R v. 534, 53) (1939). Coates, MeCormick § 131; Donigan & Fisher, Evidence Handbook 183 (1958) ; 2 Conra 1, supra note 6, § 1122. Se also People v. Zerillɔ, 214 P. 2.4 31, 35 (Cal. Dist. Ct. App.) rev'd on other grounds. 35 Cal. 24 222, 223 P. 2d 223 (1950); People v. McCarthy, 88 Cal. App. 2d 883, 888, 200 P. 2d 69, 72 (Dist. Ct. App. 1948); Lombard v. Mayberry, 24 Neb. 674, 691, 40 N.W. 271, 279 (1888).

While the commentators have criticized the narrow waiver rule, such criticism has occasionally been singled out for castigation by the courts. See, e.g., State v. Vance, 33 Utah L, 38-41, 110 Pac. 434, 447-48 (191)). State decisions generally deal with the subject problem in the context of State self-incrimination provisions. The Supreme Court of Washington was face 1 with the per missible extent of cross-examinatiod in State v. Crowder, 119 Wash. 450, 101 Pac. 35) (1922), where it citol authority to the effect that the Unitee States Supreme Court had previously laid down the rule that an a fversary has no right to cross-examinn any witness except as to facts and circumstances connected with the matters stated in the witness direct examination. Applying the self-incrimination provision of the Washington constitution, the court ruled that the defen fant's privilege against self-ineri mination was violated when he was compelled to testify on cross-examination regarding a matter not touched on during the examination in chief.

See notes 20, 26 supra.