The next point I wish to make, if the Court please, is that whenever what is called an accomplice or an informer turns what is called State's evidence, and whenever he is permitted by the court to be sworn as a witness in a case, there is then upon the part of the Government an implied promise that if he tells the truth he shall not be punished. I read from the Whiskey cases, 9 Otto, page 595. Mr. Justice Clifford delivers the opinion of the court.
Courts of justice everywhere agree that the established usage is that an accomplice duly admitted as a witness in a criminal prosecution against his associates in guilt, if he testifies fully and fairly, will not be prosecuted for the same offence, and some of the decided cases and standard text-writers give very satisfactory explanations of the origin and scope of the usage in its ordinary application in actual practice.
The Court. What point are you now making to the Court?
Mr. Ingersoll. I am making this point: It appears from the evidence that Mr. Wilshire, the attorney of Mr. Rerdell told him at the time he was making up his mind whether he would go to the Government or not, about the whiskey cases.
I make the point that when an accomplice turns State's evidence the State cannot prosecute him after that if he testifies fully and fairly; that the usage is immemorial, and that there is not an exception in the records of all the cases in the books; consequently that when Mr. Merrick told him, "You must look simply to the Government and to the Court and you will have just exactly what the law gives you and no more," his remarks meant that the law gave him perfect immunity, provided he went upon the stand and swore truthfully.
The Court. You have demonstrated, as far as you have been able to, that he has not sworn truthfully.
Mr. Ingersoll. He has not; he has not; and if the Government will act fairly with him he will get no immunity.
When he went to the Government he understood the law to be that if he swore fully and fairly, or if he swore in such a way that they could not prove that he did not swear fully and fairly, he was to have immunity. He understood that the more he swore against the defendants the better was his chance for immunity. He knew that the Government would never complain of any lie he swore against the defendants.
Now, the next question is what is the law of accomplices, of informers? There was a remark made by Mr. Bliss in his speech, that they had plenty of evidence in this case without the testimony of Mr. Walsh or Mr. Moore or Mr. Rerdell; plenty of evidence without the testimony of Mr. Rerdell. If that had been so then the Government had no right to put Mr. Rerdell on the stand. There is but one excuse for using the testimony of a man who pleads guilty, and that is that without his testimony a conviction cannot, in all probability, be obtained. And upon that point I refer to 10 Pickering, 478, and to 9 Cowen, 711; and not only upon that point, but upon the point I made at first, that whenever you put such a man upon the stand that of itself amounts to a promise of absolute immunity:
The object of admitting the evidence of accomplices is in order to effect the discovery and punishment of crimes which cannot be proved against the offenders without the aid of an accomplice's testimony. In order to prevent this entire failure of justice recourse is had to the evidence of accomplices.—I Phillips on Evidence, 107.