XII. Rights Of Accused
Acquittal By Jury Final—Accused Not Compelled To Be A Witness
Now keeping in mind that this is a personal matter with each one of us, that we are talking about our own rights, that some day our liberties may be in danger, let us take up the next guaranty of the Constitution: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”.[62]
I am sure you do not know what that means. I am sure there is not one of you who ever dreamed that such a thing might happen to you as to be “twice put in jeopardy of life or limb”. This is very important and likewise very simple. In the olden days, in the old world, many a man was tried for a crime in court and found not guilty, and then later was arrested and put on trial again and found guilty. Suppose your father, as I said the other day, should be arrested, although he were innocent. Suppose he were indicted by this grand jury and brought on for trial. He would be compelled to hire a lawyer, if he were able to, and get ready for trial. The trial would come on, and days or possibly weeks might be spent in examining witnesses. Finally the case would close and the jury would bring in a verdict of “not guilty”. It would be an expensive proceeding. Perhaps it would take all the money he had saved. It would not only be expensive but it would be a hard strain upon him, your mother, the other children, and yourself. It is a very serious matter for an innocent man to be tried for murder. Still the verdict of “not guilty” comes in and you are all full of joy to realize that his life and liberty have been saved. Now suppose [pg 099] it were possible that within a couple of weeks afterwards he could again be arrested, indicted, put on trial. All of the family would again be subjected to worry and sorrow. You do not think it would be just, do you? It would not be right. Of course it wouldn't be right, but men in the olden days have been compelled to submit to such injustices. So when the Constitution was adopted this guaranty which I just read was put in there, so that for any offense against the United States no man can be tried again after acquittal. Once a jury of his fellowmen, his neighbors, brings in a verdict of “not guilty” that ends forever any prosecution for the same offense. He is free and there is no power in the United States nor any of its officers to call him again for trial for that offense. Most of the States have a like constitutional guaranty.
Then there is another important guaranty: “nor shall (he) be compelled in any criminal case to be a witness against himself”.[63]
I wonder if you have ever heard of the days when men were tortured to make them confess. I wonder if you ever heard of the rack where men were stretched, almost torn limb from limb, or of the days when men were hung up by their thumbs, in order to compel them to admit their guilt of some crime. Have you read of the burning of the soles of men's feet? Or the application of red hot irons to other parts of the body in order to extort a confession? Well those were common things in some of the countries in the days before America was born. Men would be arrested, charged with an offense, and then an effort would be made to torture them into confessing to the crime. And often where no such brutal torture was employed, men were brought into court, put on the stand, threatened, examined, and cross examined by lawyers to try to gain admissions which might help to prove their guilt. Of course this was all wrong. It was brutal. It was a violation of human right. When the [pg 100] Constitution of the United States was framed this great abuse of human privilege was absolutely barred by the provision, that no one can “be compelled in any criminal case to be a witness against himself”. In this country, when a man is brought into court charged with a crime, it is the duty of the government to prove his guilt. This proof must be by the sworn testimony of witnesses of certain facts or circumstances, aside from any statement or admission by the defendant. He cannot be compelled to be a witness at all. If he so wishes, however, he may be a witness for himself. This privilege was denied him under the English practice for generations, and even in this country in many of the States until a comparatively recent time; but never since the Constitution was adopted could any person charged with a crime against the United States be compelled to testify to any fact or circumstance in relation to the crime. Not only can he sit in the court room and listen to the stories told against him, but he is guaranteed this right by protection against any threats or inducements outside of court and before the trial which would lead him to say anything against his innocence. Every judge in criminal courts has been compelled at times to refuse to admit in evidence before the jury certain statements or alleged confessions. You may see in the paper where some man has been arrested for breaking into a bank or committing some other offense, and it may be further stated that the defendant has confessed that he broke into the bank. Naturally you then say to yourself that he will be found guilty. Well this constitutional guaranty not only protects him in court but protects him out of court. He cannot be compelled to give answers after his arrest while he is in jail, or even if he is at liberty under bond, which can be used against him upon the trial. Of course a person charged with a crime may waive this constitutional guaranty. He may voluntarily say that he wants to tell his story, and [pg 101] if he does so without any inducement, promises, or threats it may be admitted against him when the trial comes. Otherwise not. To be admitted, it must appear to be absolutely voluntary and of his own free will. If it appears that the confession has been induced by promises of lighter sentence or “that it will be easier for him”, or if any other inducement is used to get him to consent to make his statement, such statement cannot be used in evidence because of his constitutional guaranty. Many times I have seen the court refuse to admit proof of an alleged confession of a defendant, and I could see that the jury trying the case and the people sitting in the court room were surprised that the judge would not admit such proof even when the confession was signed by the defendant; but the jury and the people did not happen to think of this constitutional provision. Perhaps they had never heard of it. Every judge is sworn to uphold and defend the Constitution. No judge can permit any provision of the Constitution to be violated if he can help it. A man is on trial before him. A written confession is offered in evidence to help convict him. The defendant's attorneys claim that the confession was not voluntary but was induced by threats or promises. The court then makes inquiry and hears the witnesses upon this question, and if the court finds that the confession was not the voluntary act of the defendant, the same will be excluded because the Constitution provides that no man “shall be compelled in any criminal case to be a witness against himself”.
Let us turn again to the false accusation against your father. He is charged with murder. He is on trial before a jury. The attorney for the government pulls a paper out of his pocket and offers it in evidence. It appears to be signed by your father. Your father's attorney objects to having it considered by the jury for the reason that the policemen took your father into a cell in the jail, and threatened that they [pg 102] would beat him with their clubs unless he would sign a paper telling how he committed the offense, and that in terror he signed the paper. At this point, the court would hear the statements of your father, and other evidence, and if it appeared that there were any threats of any kind used to get your father to sign the paper, it would not be admitted in evidence at all. Your father would only claim his constitutional rights as an American, and they would not be denied to him.
There are notable instances in which confessions were made and signed by innocent parties, who were discouraged because the facts seemed to be all against them, who felt that they were certain to be convicted, and that their punishment would be lighter if they would make a confession. Under this impression they made and signed a confession. It was afterward found that the confession was false and that they were innocent of the crime. This constitutional guaranty protects against any injustice of this kind.
These careful efforts of the makers of the Constitution to guard the liberties of the most humble persons must impress us with the earnestness of their efforts to make this a free country, where no one shall be deprived of his life or liberty except where proven guilty, after a most carefully guarded trial.
Isn't it fine to live in a country where the people have a Constitution written in such simple language that even the little children can read it? I want every one, even the smallest child, to understand that every line of the Constitution was written to guard and protect each one of us, young and old, against injustice and wrong. These safeguards cannot be taken away except by the people themselves. The President cannot change the Constitution. Congress cannot change it. Judges cannot change it. No one but the men and women of America can alter it in the least.