$206. Restrictions upon the Privilege. The privilege of refusing to answer is restricted to questions, answering which may tend to criminate the witness, or expose him to punishment. Hall v. State, 40 Ala. 698. It is an established and universally accepted maxim of the common law, that a witness shall not be compelled to answer any question that tends to criminate him, or to expose him to a criminal prosecution, or to a penalty; which finds expression in the constitutional guaranty, that no person shall be compelled to give evidence against himself. The right of exemption extends, not only to answers which may criminate, but also to such as may tend to criminate.

On the trial of a female, charged with being a common prostitute, and having no honest employment, whereby to maintain herself, the petitioner was called by the prosecution and sworn as a witness. Having testified that he was a witness before the grand jury when the indictment was found, the question was proposed to him, whether or not he had had sexual intercourse with the accused within six months prior to the time he was before the grand jury. The court instructed the witness that it was his duty, and directed him, to answer the question. The witness refused to answer, whereupon the court adjudged him guilty of a contempt, and ordered his imprisonment. It was the province of the court to determine, in the first instance, whether a direct answer to the question proposed would furnish criminating evidence against the witness. The rule is founded on the duty of the court to take care that the exercise of the privilege shall not extend, by mistake or error of the witness, or on simulated pretense, to the suppression of evidence, which is necessary to the due administration of the law, and in giving which there can be no real and appreciable danger of crimination, or exposure to prosecution, or to any kind of punishment. Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754. It is also of the highest importance, that the witness shall be protected in the proper and rightful exercise of his privilege, which has for its object the security of life and liberty. The court should not require the witness to fully explain the manner in which his answer may tend to criminate him, as the purpose of the privilege may be thereby defeated; nor should he be required to answer, when he claims his privilege, unless from the nature of the answer, and the circumstances of the case, it is evident to the court that his answer can not have any tendency to expose

him to a criminal charge or prosecution, or to a penalty. If the prosecution for the offense is barred by the statute of limitations, the reason of the privilege ceases, and the witness should be compelled to answer. See cases cited in § 205.

Professional communications are not privileged when such communications are for an unlawful purpose, having for their object the commission of crime. They then partake of the nature of a conspiracy, or attempted conspiracy, and it is not only lawful to divulge such communications, but under certain circumstances it might become the duty of the attorney to do so. The interests of public justice require that no such shield from merited exposure shall be interposed to protect a person who takes counsel how he can safely commit a crime. The relation of attorney and client cannot exist for the purpose of counsel in concocting crimes. The privilege does not exist in such cases. 1 Gilbert, Ev. 277; Greenough v. Gaskell, 1 Myl. & K. 98; Coveney v. Tannahill, 1 Hill, 33; Bank of Utica v. Mersereau, 3 Barb. Ch. 528; People v. Blakeley, 4 Park. Crim. Rep. 176; 1 Whart. Crim. Law, § 773; Roscoe, Crim. Ev. 150; People v. Van Alstine, 57 Mich. 69.

§ 207. Recent Judicial Reviews of the Subject.-Judge Mitchell of the supreme court of Minnesota has furnished a singularly apt exposition on this entire subject in the case of State v. Thaden, 43 Minn. 253.

This decision was rendered in 1890 and states the rules that obtain in all jurisdictions with reference to the topic.

"While no principle of the common law is more firmly established than that which affords a witness the privilege of refusing to answer any question which will criminate himself, yet its application is attended with practical difficulties. To hold that the witness himself is the sole and absolute judge whether the answer will criminate him would be to place it in his power to withhold evidence whenever he saw fit. Such a rule could not be tolerated for a moment. On the other hand, to require him to state what answer he would have to give, or to explain fully how his answer would tend to criminate, would deprive him of the very protection which the law designs to afford. Moreover, the reason of the rule forbids that it should be limited to confessions of guilt, or statements which may be proved in subsequent prosecutions as admissions of facts sought to be established therein; but it should be extended to the disclosure of any fact which might constitute

an essential link in a chain of evidence by which guilt might be established, although the fact alone would not indicate any crime. Hence the problem is how to administer the rule so as to afford full protection to the witness, and at the same time prevent simulated excuses. All the authorities agree to the general proposi

tion that the statement of the witness that the answer will tend to criminate himself is not necessarily conclusive, but that this is a question which the court will determine from all the circumstances of the particular case, and the nature of the evidence which the witness is called upon to give. But the question on which the cases seem to differ is as to what we may call the burden of proof; some holding that the statement of the witness must be accepted as true, unless it affirmatively appears from the circumstances of the particular case that he is mistaken, or acts in bad faith, while other cases hold that, to entitle a witness to the privilege of silence, the court must be able to see, from the circumstances of the case and the nature of the evidence called for, that there is reasonable ground to apprehend danger to the wit

if he is compelled to answer. The following are a few of the leading cases treating on this subject: 1 Burr's Trial, 255; People v. Mather, 4 Wend. 229; Ward v. State, 2 Mo. 120; Kirschner v. State, 9 Wis. 140; Chamberlain v. Wilson, 12 Vt. 491; Janvrin v. Scammon, 29 N. H. 280; Fries v. Brugler, 12 N. J. L. 91; Temple v. Com. 65 Va. 892; La Fontaine v. Southern Underwriters Asso., 83 N. C. 132; Reg. v. Boyes, 1 Best & S. 311. The difference is theoretical, rather than practical; for it would be difficult to conceive of an instance where the circumstances of the case, and the nature of the evidence called for, would be entirely neutral in their probative force upon the question whether or not there was reasonable ground to apprehend that the answer might tend to criminate the witness. After consideration of the question and an examination of the authorities, our conclusion is that the best practical rule is that laid down in some of the English cases, and adopted and followed by Chief Justice Cockburn, in Reg. v. Boyes, supra, that, to entitle a party called as a witness to the privilege of silence, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. To this we would add that, when such reasonable appre

hension of danger appears, then, inasmuch as the witness alone knows the nature of the answer he would give, he alone must decide whether it would criminate him. This, we think, is substantially what Chief Justice Marshall meant by his statement of the rule in the Burr trial. As was said in Reg. v. Boyes, supra, the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law, in the ordinary course of things; not a danger of an imaginary or unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. A merely remote and naked possibility, out of the ordinary course of the law, and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice." Lea v. Henderson, 1 Coldw. 146; Robinson v. Neal, 5 T. B. Mon. 213; Short v. State, 4 Harr. (Del.) 568; State v. Marshall, 36 Mo. 400; Cockburn v. Odell, 30 N. H. 540; Marshall v. Riley, 7 Ga. 367; Richman v. State, 2 G. Greene, 532; Bank of Salina v. Henry, 2 Denio, 155; People v. Mather, 4 Wend. 229; United States v. Moses, 1 Cranch, C. C. 170; United States v. Lynn, 2 Cranch, C. C. 309; United States v. Strother, 3 Cranch, C. C. 432; Chamberlain v. Wilson, 12 Vt. 491; Pleasant v. State, 15 Ark. 624; Pickard v. Collins, 23 Barb. 444.

A further review of the subject in adjudged cases will be useful.

In Respublica v. Gibbs, 3 Yeates, 429, and 4 U. S. 4 Dall. 253, 1 L. ed. 822, in 1802, the declaration of rights in the constitution of Pennsylvania of 1776, declared that no man can "be compelled to give evidence against himself," and the same language was found in the constitution of 1790. Under this, the supreme court of Pennsylvania held that the maxim that no one was bound to accuse himself extended to cases where the answer might involve him in shame or reproach; and it held to the same effect in Galbreath v. Eichelberger, 3 Yeates, 515, in 1803.

In June, 1807, Chief Justice Marshall, in the Circuit Court of the United States for the District of Virginia, in the Burr trial (1 Burr's Trial, 244) on the question whether the witness was privileged not to accuse himself, said: "If the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest

with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he says upon his oath, that the answer would criminate himself, the court can demand no other testimony of the fact.

According to their statement" (the counsel for the United States) "a witness can never refuse to answer any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of crime. This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible, but a probable case, that a witness, by disclosing a single fact, may complete the testimony against himself; and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom, he is safe, but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself, would most obviously be infringed, by compelling a witness to disclose a fact of this description. The court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws."

In Higdon v. Heard, 14 Ga. 255, in 1853, it was said that the constitution of Georgia declared "that no person shall be compelled in any criminal case to be a witness against himself." In that case the plaintiff had filed a bill in equity praying a discovery as to property which he alleged the defendants had won from him in a game of cards. The bill was demurred to on the ground that the law of the state compelling a discovery of gaming transactions was unconstitutional, because such transactions were criminal, and the statute did not grant an absolute and unconditional release from punishment, and because the defendants could not make the discovery sought without eriminating themselves and incurring penalties. The demurrer was overruled by the supreme court of Georgia, on the ground that, although all persons were protected by the constitution from furnishing evidence against themselves which might tend to subject them to a criminal prose