149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650
The United States brought a criminal prosecution against Wilson in federal district court.1 Wilson did not request to appear as a witness in his own behalf during the trial.2
In his closing argument to the jury, the District Attorney referred to Wilson's decision not to testify.3 He stated that if he were ever charged with crime, he would not limit himself to calling witnesses to his good character but would instead take the stand himself, hold up his hand before high Heaven, and testify to his innocence of the crime.4
Counsel for the defendant objected to this comment and called it to the attention of the court.5 The court responded by observing that counsel should not comment upon the defendant not taking the stand and that it did not know whether the matter ought to be the subject of comment by counsel.6
The District Attorney replied that he did not mean to refer to the failure to testify in that light and did not intend to refer in a single word to the fact that Wilson had not testified in his own behalf.7 The entire exchange was preserved in the bill of exceptions.8
After the jury returned a verdict of guilty, Wilson pursued a writ of error to the Supreme Court of the United States to challenge the proceedings.9
Whether the district attorney's comment upon the defendant's failure to request to be a witness, together with the trial court's response to that comment, violated the federal statute prohibiting any presumption against the defendant from such failure?
The act of Congress permitting the defendant in a criminal action to appear as a witness in his own behalf upon his request declares that his failure to request to be a witness in the case shall not create any presumption against him.10 To prevent such presumption being created, comment, especially hostile comment, upon such failure must necessarily be excluded from the jury.11
Yes. In the present case the District Attorney's comment in closing argument that if he were charged with crime he would take the stand and testify to his innocence plainly intimated to the jury that Wilson's failure to testify was a circumstance against his innocence.12 The trial court's mild response that counsel should not comment upon the defendant not taking the stand and its uncertainty whether the matter ought to be the subject of comment failed to emphatically condemn the remark or prohibit any subsequent reference.13 This left the impression on the minds of the jury that if Wilson were an innocent man he would have gone on the stand.14
The facts establish that Wilson did not request to appear as a witness during the trial, the District Attorney made the referenced statement in his closing argument, counsel for the defendant objected and called the matter to the court's attention, the court gave the mild observation instead of a direct prohibition, and the District Attorney's reply only intensified the point. These actions disregarded the statutory prohibition and tended to prejudice Wilson before the jury.15
The district attorney's comment upon Wilson's failure to request to be a witness, together with the trial court's response to that comment, violated the federal statute.