Page:Harvard Law Review Volume 5.djvu/43

THE PRIVILEGE OF WITNESSES. 27 It has been held that when the crime has been barred by the Statute of Limitations, witness may be compelled to testify. 1 So where crime has been pardoned, witness may be compelled- to testify. 2 But if the privilege, though guarded by constitutional sanction, can be abrogated by statute, clearly it can only be abrogated by a statute giving the witness protection at least equal to that afforded by the privilege itself. This brings us to the second question above proposed, Does the statute in question in fact abrogate the privilege as guaranteed by the constitution? What protection does the statute furnish? It provides that the discovery or evidence given by the witness shall not be " given in evidence, or in any manner used against him," in any criminal proceeding. All that this language seems to mean is, that admissions or confessions contained in such discovery or evidence shall not be used against the person furnishing it. It protects the witness from the use of his evidence as an admission in any criminal proceeding against him. It would not prevent sources of evidence disclosed by his evidence from being used against him. For instance, the witness testifies that he, with A, B, and C, committed a murder ; that the deed was done with a knife belonging to witness, which he after- ward hid in a place which witness describes in his testimony so that the knife can be found. Witness' admissions cannot, under the statute, be used against him on his subsequent indictment and trial for murder ; but there is nothing in the statute which would prevent the prosecution from producing the blood-stained knife and proving that it belonged to witness, or from calling A, B, and C to testify as to witness' complicity in the affair. It might, then, easily be that witness would be convicted without the need of his admissions, by evidence the sources of which were pointed out by his evidence. And in such a case the protection of the statute would be of no avail to him. Let us now consider what protection the privilege to refuse to incriminate himself would have afforded witness. The privilege to refuse to give self-accusatory evidence is very broad. It covers not only the main incriminatory facts, but all minor and subordinate facts, not incriminatory in themselves, but 1 Mahanke v. Cleland, 76 Iowa, 401 ; Close v. Olney, 1 Denio, 319 ; Weldon v. Bench, 12 111. 374. Contra, see McFadden v. Reynolds, 11 Atl. Rep. 638. 2 Regina v. Boyes, 1 B. & S. 311.