The Testifying Defendant. A Proposed Rule of Limited Waiver for the Trial of Joined Offenses
University of Pennsylvania law review
A defendant in a criminal prosecution who voluntarily testifies at trial waives his fifth amendment privilege against self-incrimination.' Unlike the ordinary witness, the accused cannot be compelled at trial to answer even a single question; but once he has taken the stand and testified in his own behalf, he may be cross-examined like an ordinary witness. 2 Questions which elicit an inculpatory response are then no longer barred by the fifth amendment privilege, for the defendant's waiver
... ndant's waiver removes the constitutionally prohibited element of compulsion. This waiver rule has been justified on two grounds. The primary rationale is that a defendant should not be allowed to present his side of his own story to the jury without cross-examination designed to discover and correct any distortion of the truth. 3 A second consideration is that once a defendant has given substantial testimony, he would find little, if any, protection by claiming the privilege. At this point policies of disclosure are thought to outweigh the privilege. 4 While courts agree that defendant's testimony constitutes a waiver, they disagree upon the precise scope of the waiver.' As a general rule, it extends to those matters properly the subject of cross-examination; 4 this raises the question what is properly the subject of cross-examination. The majority or federal rule limits cross-examination to matters raised by defendant's testimony in chief, 7 but it is tempered by an IFitzpatrick v. United States, 178 U.S. 304, 315 (1900); C. McCoRMIcK, EvI-DFCcE § 131 (1954); F. WHARTON, 3 CRIMINAL EVIDENCE § § 885-94 (R. Anderson ed. 1955) [hereinafter cited as WHARTON]; J. WIGMORE, 8 EVIDENCE § 2276 (J. McNaughton rev. ed. 1961) [hereinafter cited as WIGMORE]. For discussions of the accused's right to testify and the prosecutor's right to cross-examine the accused, see Carlson, Cross-Examination of the Accused, 52 CORN.