William J. Brennan, Jr.

“ This has proven to be a perfect cast of appellant's line, for the Court has risen to the bait exactly as anticipated. The resulting advantage of the Court's present holding to the criminal defendant in Georgia is obvious-as matters now stand, the defendant may make an unsworn statement as articulate and convincing as the aid of counsel can evoke, but the prosecution may not cross-examine.
It is true that merely to defeat such a result is insufficient justification for this Court to reach out and decide additional constitutional questions otherwise avoidable. ”

“ Until such time as criminal defendants are granted competency by the legislature, the void created by rejection of the codified common-law rule of Georgia may be filled by state trial judges who would have to recognize, as secured by the Fourteenth Amendment, the right of a criminal defendant to choose between silence and testifying in his own behalf. ”

“ Writing in 1863, Stephen opposed the extension of competency of defendants. He argued that it was inherent that a defendant could not be a real witness: ' (I) t is not in human nature to speak the truth under such a pressure as would be brought to bear on the prisoner, and it is not a light thing to institute a system which would almost enforce perjury on every occasion.' A General View of the Criminal Law of England, p. 202. Competency would put a dangerous discretion in the hands of counsel. ”

“ In the sixteenth century it was necessary for an accused to conduct his own defense, since he was neither allowed to call witnesses in his behalf nor permitted the assistance of counsel. 1 Stephen, History of the Criminal Law of England, p. 350. The criminal trial of this period has been described as 'a long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other's arguments with the utmost eagerness and closeness of reasoning.' Stephen, supra, p. ”

“ The State of Georgia is the only State-indeed, apparently the only jurisdiction in the common-law world-to retain the common-law rule that a person charged with a criminal offense is incompetent to testify under oath in his own behalf at his trial. Georgia in 1866 abolished by statute the common-law rules of incompetency for most other persons. ”

“ Of course, even in jurisdictions which have granted competence to defendants, the prosecution may decline to cross-examine. But at least the defendants in those jurisdictions have had the advantage of having their explanation elicited through direct examination by counsel. In Georgia, however, as was held in this case, counsel may not examine his client on direct examination except in the discretion of the trial judge. The refusal to allow counsel to ask questions rarely seems to be reversible error. ”

“ The majority of the competency statutes of the States forbid comment by the prosecution on the failure of an accused to testify, and provide that no presumption of guilt should arise from his failure to take the stand. ”

“ If, as is the truth, § 38-415 has meaning only when applied in the context of § 38-416's rule of incompetency, surely we are not so imprisoned by any formal rule governing our reviewing power that we cannot consider the two parts of a disseverable, single whole because petitioner has not asked us in terms to review both halves. It is formalism run riot to find that the division into two separate sections of what is organically inseparable may not for reviewing purpose be treated as a single, appealable unit. ”

“ For § 38-416 is a statutory declaration of the common-law rule disqualifying criminal defendants from testifying, and § 38 415, also with its roots in the common law, was an attempt to mitigate the rigors of that incompetency.
The disqualification of parties as witnesses characterized the common law for centuries. Wigmore traces its remote origins to the contest for judicial hegemony between the developing jury trial and the older modes of trial, notably compurgation and wager of law. See 2 Wigmore, Evidence, pp. 674-683. Under those old forms, the oath itself was a means of decision. ”

“ The English Revolution is against it, three centuries of experience is against it; and the only argument adduced in its favor is the suggestion that an honest man is occasionally convicted of a crime of which he is innocent. ”

“ Before the end of the century every State except Georgia had abolished the disqualification. [6]
Common-law jurisdictions outside the United States also long ago abolished the disqualification. This change came in England with the enactment in 1898 of the Criminal Evidence Act, 61 & 62 Vict., c. 36. [7] Various States of Australia had enacted competency statutes even before the mother country, as did Canada and New Zealand. Competency was extended to defendants in Northern Ireland in 1923, in the Republic of Ireland in 1924, and in India in 1955. ”

“ An innocent man, charged with a heinous offence, and against whom evidence of guilt has been given, is much more likely to be overwhelmed by his situation, and embarrassed, when called upon for explanation, than the offender, who is hardened in guilt ”

“ In view of the certain fact that criminal prosecutions will continue to be had in Georgia, and that some defendant, if not appellant himself at his new trial, will demand the right to testify in his own behalf, in strict compliance with the procedural standard adhered to today, we will sooner or later have the question of the validity of § 38-416 back on our doorstep. ”

“ The Court does not, however, treat § 38-416 as anything more substantial than 'context,' and, while rendering its validity doubtful, fails to pass upon its constitutionality. The Court's hesitancy to reach that question appears to be due to appellant's tactic, at the trial, of offering his statement under § 38-415 and, in so doing, demanding the aid of his counsel, but not offering himself as a competent witness or challenging his exclusion under § 38-416. ”

“ Jury trial replaced decision by oath with decision of the jurors based on the evidence of witnesses; with this change ' (T) he party was naturally deemed incapable of being such a witness.' 2 Wigmore, p. 682. Incompetency of the parties in civil cases seems to have been established by the end of the sixteenth century. See 9 Holdsworth, History of English Law, p. 194. In time the principal rationale of the rule became the possible untrustworthiness of the party's testimony; for the same reason disqualification was applied in the seventeenth century to interested nonparty witnesses. ”

“ The tensions of a trial for an accused with life or liberty at stake might alone render him utterly unfit to give his explanation properly and completely. Left without the 'guiding hand of counsel,' Powell v. State of Alabama, supra, 287 U.S. at page 69, 53 S.Ct. at page 64, he may fail properly to introduce, or to introduce at all, what may be a perfect defense. '* * * though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.' Ibid. The treatment accorded the unsworn statement in the Georgia courts increases this peril for the accused. ”

“ Where the practice survives outside America, little value has been attached to it. 'If the accused does not elect to call any evidence or to give evidence himself, he very often makes an unsworn statement from the dock. ”

“ The law fixes no value upon it; it is a legal blank. The jury may stamp it with such value as they think belongs to it.' Vaughn v. State, 88 Ga. 731, 739, 16 S.E. 64, 66. Because the statement is not evidence, even the charge in the strict terms of the statute favored by the Georgia Supreme Court, see Garrett v. State, 203 Ga. 756, 765, 48 S.E.2d 377, 383; Emmett v. State, 195 Ga. 517, 541, 25 S.E.2d 9, 23, calls attention to the fact that the defendant is not under oath. Moreover, charge after charge going beyond the terms of the statute has been sustained. ”

“ Millhouse, 15 Cox C.C. 622.↑ In some States recognizing the statement at common law, the defendant was confined to arguing the law and commenting on the evidence of the witnesses; he could not state facts. See Ford v. State, 34 Ark. 649; Wilson v. State, 50 Tenn. 232. In other States, the prisoner appears to have been allowed more latitude. See People v. Lopez, 2 Edm.Sel.Cases, N.Y., 262. In Massachusetts, the right of a defendant with counsel to make a statement seems to have been recognized only in capital cases. ”

“ Georgia therefore followed the incompetency rule for criminal defendants long before it was given statutory form by the Act of 1866. See Jones v. State, 1 Ga. 610; Roberts v. State, 189 Ga. 36, 40-41, 5 S.E.2d 340, 343. [4]
Broadside assaults upon the entire structure of disqualifications, particularly the disqualification for interest, were launched early in the nineteenth century in both England and America. Bentham led the movement for reform in England, contending always for rules that would not exclude but would let in the truth. See Rationale of Judicial Evidence, bk. ”