The Testifying Defendant. A Proposed Rule of Limited Waiver for the Trial of Joined Offenses

1970 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
more » ... 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.
doi:10.2307/3311176 fatcat:chqukxy34ja4zkkcw57mc2ihxu