Wigmore, as noted earlier, favored substantial elimination of the accused's privilege once he abandoned the safety of the defense table and took the stand." He disliked use of the privilege to cut off a vital source of information. However, it appears that growing improvements in techniques for investigating and solving crime make the use of forced self-accusation far less imperative than it may have been when Wigmore wrote. As one writer has stated in analyzing Wigmore's approach to the waiver problem: "No data has been presented to demonstrate that the operation of the majority rule, that waiver is limited to the matter testified about on direct, has been difficult of administration or inimical to the administration of justice." 46

Any future indication by the Supreme Court that limited cross-examination constitutes an intrinsic incident of the fifth amendment could have powerful ramifications. Until 1964 the scope of a defendant's privilege against self-incrimination in state prosecutions was determined solely by the constitution of the state involved." Malloy's application of the fifth amendment to the states sounded the death knell for "dual sovereignty" in the area of self-incrimination protection.48 The Court made clear that the states were bound to federal constitutional standards governing the privilege.49 Thus, a future holding which confines the scope of waiver to direct examination could have dramatic implications for state practice. Cross-examination beyond the scope of the direct might thereafter be constitutionally impermissible, the freedom of the states to allow wide-open cross-examination of the defendant being superseded by the accused's fifth-amendment protection.

In addition to this disquieting prospect for "wide-open rule" states, there may be a major problem in regard to cases already tried. Standards established by previous federal decisions govern the present scope of constitutional protection.31 If the limited waiver rule is derived from the constitution, one may contend that this federal standard unsettles prior convictions obtained under the "wide-open" rule. Would prisoners previously convicted upon trials wherein the cross-examination ranged well beyond direct testimony possess meritorious habeas corpus claims based upon the fact that the cross-examination explored areas protected from forced disclosure? Posed differently, did not the Supreme Court in Brown v. United States 52 indicate that it is the defendant who determines the general area of disclosure, and not the prosecutor through the vehicle of inquiries which probe matters foreign to the direct testimony?

The problem of unsettling prior convictions arises with virtually every constitutional interpretation extended to state criminal procedure. In connection with

48 Wigmore § 2276(2). See also, Degnan, "Non-Rules Evidence Law: Cross-Examination," 6 Utah L. Rev. 323 (1959).

45 See Note, 73 Yale L.J. 1491, 1497-98 (1964).

46 Quick, supra note 42, at 20, See also Model Code of Evidence rule 208 (1947). Proponents may advance several arguments on behalf of the narrow waiver rule which limits cross-examination to the direct. (1) Wide-open cross-examination increases the reluctance of the defendant to testify, contrary to the basic policy of the rules of evidence which seek to encourage this testimony. (2) It is unfair to permit the prosecutor to establish independent elements in his own case through the vehicle of cross-examination, thereby violating the fundamental concept that the individual should not be conscripted to assist the government in convicting himself. (3) Limited cross-examination subjects any testimony given by the defendant to the antiseptic test of adversary interrogation, yet shields him from overreaching prosecutorial inquisition. (4) The limited rule stimulates governmental investigation from other sources and discourages forced disclosures by the accused. See generally Quick, supra note 42, at 18-20.

47 See Note, 52 Cornell L.Q. 323, 330 (1967).

45 Recent terms of the Supreme Court have added fresh dimensions to the controversy over incorporation of the Bill of Rights into the fourteenth amendment. See Cushman, "Incorporation: Due Process and the Bill of Rights," 51 Cornell L.Q. 467 (1966); "The Supreme Court, 1964 Term," 79 Harv. L. Rev. 56, 107 (1965). The decision prohibiting comment on the accused's failure to testify illustrates the current approach to the incorporation problem. Traditionally, the Court asked whether the given right was implicit in the concept of ordered liberty and therefore an essential requirement of due process. However, the Court's recent application of the no-comment rule to state trials has stressed the need for similar standards in state and federal trials to protect the accused's privilege against self-incrimination. "It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court." Malloy v. Hogan, 378 U.S. 1, 11 (1964). See "The Supreme Court, 1964 Term," 79 Harv. L. Rev. 56, 112 (1965); Note, 61 Nw. U.L. Rev. 654, 657 (1966).

50 For recent articulations of the English rule in state criminal cases, see Madden v. State, 10 Ala. App. 271, 274, 112 So. 2d 796, 799 (1959); State v. Taylor, 99 Ariz. 86, 90, 407 P 2d 69, 62 (1965), cert. denied, 384 U.S. 979 (1966); Rush v. State, 254 Miss. 641, 654, 182 SO. 2d 214, 219 (1966). See also, Jones v. Commonwealth, 327 Mass. 491, 99 N. E. 2d 456 (1941), also reflecting state-court handling of state privilege against self-incrimination and decreeing broad waiver which accommodates wide-open cross-examination of accused. Compare Evans v. O'Connor, 174 Mass. 287, 54 N.E. 557 (1899). Recognition of the general impact of Mallory v. Hogan is contained in Commonwealth v. Baker, 348 Mass. 60, 201 Ñ.E. 2d 119 (1964). "The Supreme Court, 1964 Term," 79 Harv. L. Rev. 56, 107–13. (1965). 52 356 U.S. 148 (1958).

54

the application to the states of the rule prohibiting comment on the accused's failure to testify, the Court decided that this guarantee was entitled to prospective effect only 53 Respecting another Bill of Rights extension, that which established an indigent defendant's right to counsel in state felony trials, retrospective operation was decreed. In making these determinations regarding retroactivity, the Court placed major reliance on the nature of the constitutional right at issue. It indicated that the right-to-counsel guarantee was designed to insure the reliability of the guilt-determining process, and its vitality would have been seriously vitiated by prospective application only.56 The Court's most recent decision on retroactivity, dealing with the rules governing police interrogation of suspects, denied retrospective operation.57 This latest case appears to accord major consideration to two significant concerns-the degree to which the right was anticipated by prior decisions of the Court and the effect of retroactive application on the administration of justice.58

Tested by these criteria, any decision limiting cross-examination in state trials may be a questionable candidate for retroactivity. Although retroactive application of a cross-examination standard would not have the same disrupting effect feared in connection with Griffin v. California,59 it is an open issue whether this right was anticipated by Malloy. Counter-arguments can be made, however, including the contention that certain federal cases approving the limited waiver rule did so on constitutional grounds, whereas the no-comment rule had a largely statutory base.60 Suffice it to say that the matter is not free from dispute.

53 Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966).

4 Gideon v. Wainwright, 372 U.S. 335 (1963).

35 See Comment, 64 Mich. L. Rev. 832 (1966).

5 See Linkletter v. Walker, 381 U.S. 618, 639 & n. 20 (1965); Mishkin, "The Supreme Court, 1964 Term: Foreword," 79 Harv. L. Rev. 56, 79-86 (1965); Note, 41 Notre Dame Law. 206 (1965).

57 Johnson v. New Jersey, 384 U.S. 719 (1966).

58 See Hall & Kamisar, Modern Criminal Procedure 503-04 (2d ed. 1966); "The Supreme Court, 1965 Term," 80 Harv. L. Rev. 91, 137 (1966). See also Linkletter v. Walker, supra note 56.

5 380 U.S. 609 (1965). See also Tehan v. United States ex rel. Shott, supra note 53.

60 At this point, some comparison of the development of the federal cross-examination rule with the nocomment rule is instructive. In 1878 Congress enacted a statute prohibiting comment on the accused's refusal to testify. When the problem of adverse comment reached the Supreme Court for the first time in the landmark case of Wilson v. United States, 149 U.S. 60 (1893), the situation was covered by this statute and did not require a constitional interpretation. Seventy-one years after Wilson the Court extended protection against compulsory self-incrimination to state procedure in Malloy v. Hogan, 378 U.S.1 (1964). Up to this time it had never been decided whether comment violated the fifth amendment, although that result was hinted at in several opinions. See Note, 70 Dick. L. Rev. 98 (1965). The state comment question had always been presented in conjunction with requests to extend the federal self-incrimination privilege to the states, a proposition rejected by the Court numerous times. But once Malloy applied the fifth-amendment protection against self-incrimination to the states, it became necessary to determine whether comment in a state court violated the constitutional guarantee.

At the time of Malloy six states permitted such comment, including California. In Griffin v. California, 380 U.S. 609 (1965), the United States Supreme Court held that the fifth amendment in its direct application to the states by reason of the fourteenth amendment forbade adverse comment on the accused's silence. Shortly after this decision, the Court ruled that Griffin was entitled only to prospective operation, stressing the disruptive effect a retroactive holding would have on the administration of justice. Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966). The Court pointed out that a retrospective application of Griflin would require the retrail of thousands of prisoners serving lengthy sentences imposed many years before Griffin. This "floodgate" argument also held sway in Johnson v. New Jersey, supra note 57, which renedered prospective effect to recent decisions limiting interrogation of suspects by state officers. Johnson further indicates that where the announced procedural standard was fully anticipated by a prior decision, prospectivity is measured from the date of such prior decision. Id. at 721.

In connection with any cross-examination holding, it might be urged that the constitutional basis of Griffin was unclear prior to its announcement, whereas the doctrine of limited waiver of privilege by a testifying defendant was constitutionally oriented in several federal cases which treated the problem. Assuming arguendo that the view prevails that the limited cross-examination rule was anticipated by Malloy, prospective operation might be applied from the date of that decision. The "floodgate" objection lodged against retroactive operation of the Griffin rule does not then appear to be equally applicable. The argument would proceed as follows. Certainly prior to Malloy a limited cross-examination rule was not mandatory on the states, and jurisdictions applying the English rule of cross-examination were free to experiment with wide-open interrogation of the accused. After Malloy, however, the federal standard became compulsory and defendants exposed to prosecutions thereafter were entitled to trials in which the fifth amendment was fully observed, including the right to be cross-examined only on issues opened by the defendant's direct examination. To the extent that the English or Massachusetts rule jurisdictions used wide open cross-examination in trials after Malloy, such cases may merit new trials under the federal rule. Dating prospectivity from Malloy, a 1964 decision, does not require retrial of a large number of prisoners convicted on evidence now remote and unavailable, as would retroactive application to all cases. The prisoner seeking retroactive operation of the Griffin rule was in effect requesting "full" retroactivity when he asked that it be applied

to his 1961 trial.

CROSS EXAMINATION OF ACCUSED

Of course, a refusal by the Supreme Court to approve a rule of limited waiver in this context would render concern over prior convictions academic. Recent decisions of the Court, however, have extended the privilege against self-incrimination 61 and narrowly restricted waiver of the constitutional guarantee.62 A prominent commentator concludes that the privilege must be given broad construction to prevent compulsory self-incrimination in any proceeding. This is especially the case where the compulsory incrimination involves an accused in a criminal trial. The trend of current Supreme Court decisions evidences the Court's full agreement with these principles. In overruling Cohen v. Hurley 65 very recently, the majority opinion spoke strongly against the use of legal process to force from the lips of the accused the evidence necessary to convict him.66 In the face of an expanding fifth amendment, there appears to be a real possibility that the Court may apply a narrow waiver principle to the accused who takes the stand at trial.

CONCLUSION

The principles governing the breadth of the federal privilege against self-incrimination at trial must be restudied. Language contained in Tucker, Fitzpatrick and allied cases indicates that if there is a good reason why a defendant should not be compelled to be a witness against himself, there is an equally good reason why he should not be compelled to testify against his will respecting matters untouched by his direct testimony. These federal decisions indicate that wide-open crossexamination of the accused may breach the constitutional prohibition against self-incrimination. The problem appears to be of great moment not only for the states as a result of Malloy v. Hogan, but also for those charged with responsibility for drafting new rules of evidence for federal trials.68

Eighty years ago the question of whether cross-examination of an accused in state courts must be confined to matters pertinent ot the testimony in chief was deemed a matter of state law and not a federal question. The Supreme Court so stated in Spies v. Illinois, 69 which held that the first ten amendments to the Constitution were not intended to limit the powers of state governments but to operate on the national government alone. The Spies decision came at a time when states were free to infringe upon or abolish an accused's exemption from compulsory self-incrimination as they saw fit. That this precedent did not remain intact is history. What is not yet history is the impact of the essential incidents of the federal privilege against self-incrimination on state criminal procedure. The implications of this constitutional application for states which employ the broad cross-examination rule can be great indeed. Not only must the appropriate dimensions of cross-examination be evaluated for future cases, but significant consideration must be accorded prior convictions obtained in violation of the limited scope rule. Exploration of the full dimensions of the privilege against self-incrimination must continue, because the limitations it imposes on crossexamination of an accused who takes the witness stand in his own behalf are of vital concern for state criminal procedure.

61 Miranda v. Arizona, 384 U.S. 436 (1966); Escobedo v. Illinois, 378 U.S. 478 (1964); Jackson v. Denno, 378 U.S. 368 (1964); Malloy v. Hogan, supra note 60.

62 See Miranda v. Arizona, supra note 61. The problem explored in this article takes on fresh dimensions in light of the Supreme Court's pronounced hostility to theories of broad waiver of the privilege, a view articulated in the context of state pre-trial interrogations of the accused. The privilege stands as a humane safeguard against coerced self-disclosure, and loss by waiver will be closely scrutinized.

63 Griswold, The Fifth Amendment Today 55 (1955).

4 See Griffin v. California, supra note 60; Wilson v. United States, 149 U.S. 60 (1893).

65 366 U.S. 117 (1961).

Spevack v. Klein, 385 U.S. 511 (1967).

67 378 U.S. 1 (1963).

es See Green, "Drafting Uniform Federal Rules of Evidence," 52 Cornell L.Q. 177, 194–95 (1967). 69 123 U.S. 131, 180 (1887).

21-191-73

U.S. TAX COURT, Washington, D.C., April 16, 1973.

Mr. HERBERT HOFFMAN,

Rayburn House Office Building,

Washington, D.C.

DEAR MR. HOFFMAN: Enclosed is a copy of the Tax Court rule with respect to the exclusion of proposed witnesses.

We would again like to thank you and Congressman Hungate for the consideration which you showed us on Friday.

Yours truly,

Enclosure.

H. TODD MILler, Clerk to Hon. Charles R. Simpson.

RULE 402

No. 1. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules adopted by the Supreme Court pursuant to statutory authority.

No. 2. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules adopted by the Supreme Court under section 3402, 3771, or 3772 of title 18 of the United States Code, or under section 2072 or 2075 of title 28 of the United States Code.

ARIZONA STATE UNIVERSITY,

COLLEGE OF LAW, Tempe, Ariz., April 17, 1973.

HERBERT E. HOFFMAN, Esq., Counsel, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, Rayburn House Office Building, Washington, D.C. DEAR MR. HOFFMAN: Replying further to your letter of April 5th and implementing my reply of April 13th, I enclose copies of the comments received by the Advisory Committee with regard to proposed Evidence Rule 405.

The enclosure does not include reports and letters which, after commenting on other rules, either said nothing about Rule 405 or simply said something to the general effect that other rules in Article IV were approved.

Sincerely yours,

EDWARD W. CLEARY,

Reporter.

SUGGESTIONS RECEIVED BY ADVISORY COMMITTEE CONCERNING PROPOSED EVIDENCE RULE 405 FOLLOWING PUBLICATION OF REVISED DRAFT OF MARCH 1971

RULE 405(A)

Suggestion: Department of Justice Analysis

Rule 405(a) provides that where admissible, evidence of character or a trait of character may be proved by opinion testimony as well as by reputation. Problem: Authorization to use opinion testimony, though recommended by some text-writers, is contrary to present law and practice, which limits such evidence to reputation. See McCormick, pp. 334-35:

The reasons for the almost universal disfavor with which courts regard opinion testimony, were persuasively stated by the New York Court of Appeals in the leading case of People v. Van Gaasbeck, 189 N. Y. 408, 418, 82 N.E. 718, 721 (1907):

If a witness is to be permitted to testify to the character of an accused person, basing his testimony solely on his own knowledge and observation, he cannot logically be prohibited from stating the particular incidents affecting the defendant, and the particular actions of the defendant which have led him to his favorable conclusion. In most instances it would be utterly impossible for the prosecution to ascertain whether occurrences narrated by the witness as constituting the foundation of his conclusion were or were not true. They might be utterly false, and yet incapable of disproof at the time of trial. Furthermore, even if evidence were accessible to controvert the specific statements of the witness in this respect, its admission would lead to the introduction into the case of innumerable

collateral issues which could not be tried out without introducing the utmost complication and confusion into the trial tending to distract the minds of the jurymen and befog the chief issue in litigation.

Opinion testimony is objectionable for other reasons. Unlike reputationevidence, which can be established by a limited number of witnesses and therefore is subject to control by the court, opinion testimony would be difficult to limit since it is the individual opinion which is relevant. As the Advisory Committee's Note makes clear, if a person is charged with a crime such as theft. the proposed opinion testimony rule would permit the accused's employer or a psychiatrist to give his opinion that the accused is an honest man. Such evidence of good character by itself "may be" sufficient to raise a reasonable doubt as to guilt and the jury is to be so instructed. Michelson v. United States, 335 U.S. 469 (1948). Moreover under present practice, the "may be" of Michelson has become the general practice with a jury being rountinely so instructed once any evidence of good character is admitted. To permit acquittal on this ground-an employer's or psychiatrist's personal opinion as to honesty-is in our view, an unwise rule of law.

Recommendation: We suggest that the authorization in Rule 405(a) to use opinion testimony to prove character or a trait of character should be eliminated. This can be accomplished by inserting a period in the first sentence of Rule 405(a) after the word "reputation" and deleting the result of the sentence.

Suggestion: Thomas A. Flannery, Esq. United States Attorney, Washington,

D.C.

Proposed Rule 405(a) and also Rule 608(a) permit proof of character, where relevant, to be by personal opinion in addition to reputation. Use of personal opinion to prove character is not permitted in the federal courts. Michelson v. United States, 355 U.S. 469 (1948). As McCormick observes (p. 334-35):

Reputation evidence, though muted and colorless, is thought to have the advantage of avoiding side-issues as to particular acts and incidents in the past life of the accused.

Opinion testimony, however, would inevitably lead to the introduction into a case of collateral issues which can only result in confusion and distraction of the jury from the main issues in dispute. Moreover, particularly as to moral traits of character, individual opinion is easily fabricated and difficult to cross-examine.

It can be persuasively argued that proof of character is both uncertain and distracting and, consequently, should not be allowed at all. If, however, character evidence is to be permitted, I oppose expanding the methods of proof and departing from the procedure set forth by the Supreme Court in Michelson.

SUGGESTIONS RECEIVED BY ADVISORY COMMITTEE CONCERNING PROPOSED EVIDENCE RULE 405 FOLLOWING TRANSMISSION OF DRAFT BY JUDICIAL CONFERENCE TO SUPREME COURT AFTER MEETING OF OCTOBER 1971

Rule 405 and Rule 608: Methods of Proving Character, and Evidence of Character and Conduct of Witness-These provisions permit the use of opinion testimony to prove a relevant trait of character. Under Rule 405, opinion testimony is permitted to negate an element of the offense charged. Pursuant to Rule 608(a), opinion testimony is permitted to buttress the defendant's credibility when it is challenged. We suggest that both provisions should restrict proof of character to reputation testimony as is the settled rule in practically all courts. Michelson v. United States, 335 U.S. 469 (1948), indicated that the courts have long recognized that proof of character by direct opinion testimony has the tendency of injecting into a trial collateral issues which complicate and confuse the trial. The Advisory Committee's note to Rule 405 acknowledges that the proposals under Rule 405 and Rule 608(a) represent a clear departure from usual practice based upon complaints of logical inconsistency advanced by the text writers.

It is our view that departure from the traditional rules relating to proof of character would inject collateral issues and confusion into litigation. Proposed Rules 405 and 608(a) disregard practicalities implicit in the longstanding practice: (1) There is no practical way of testing by cross-examination the formation of an individually held opinion concerning a specific character trait, especially if the trait involves a moral quality, such as truth and veracity. (2) Opinion testimony as to character can more easily be contrived than reputation evidence. Some knowledge of facts extraneous to a witness is required to be able to testify concerning reputation in the community. (3) A small number of witnesses usually