COMMENT UPON FAILURE OF ACCUSED TO TESTIFY

Last year the American Law Institute and the American Bar Association adopted resolutions declaring that when the defendant in a criminal trial does not testify the prosecution should be permitted to comment upon that fact. They urged the overthrow of a rule of law which have prevailed in the federal courts ever since accused persons were first permitted to give testimony, over fifty years ago, and which has governed the courts of forty-two out of the forty-eight states. The discussions which preceded the adoption of the resolutions have been published. In them the advocates of the change do not show adequate knowledge of the history of the existing rule and they do not adequately meet the constitutional question which is involved, while those who sustain the existing, almost universal, rule present reasons which are serious but not necessarily insuperable.

Therefore, it seems desirable to regard the proceedings of the Law Institute and the Bar Association as raising important questions but as calling for further and more exhaustive discussion before a generally accepted rule of law is discarded.