Schlesinger, Sheldon J.

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University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review6-1-1953Witnesses -- Privilege Against Self-IncriminationSheldon J. SchlesingerFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationSheldon J. Schlesinger, Witnesses -- Privilege Against Self-Incrimination, 7 U. Miami L. Rev. 592 (1953)Available at: http://repository.law.miami.edu/umlr/vol7/iss4/21MIAMI LAW QUARTERLYcase of premature payments by the obligee to the surety's principal, if suchpayments are substantial, these courts hold that the contract has beenmaterially altered, and they grant the surety a full release.' 2The Florida Supreme Court, in this case of first impression, has com-mitted itself to the view espoused by the weight of authority - that a cor-porate surety will be discharged only by a deviation from the contract whichresults in injury to the surety, and then only to the extent of such injury.However, by its dicta and the cases cited therein,'3 it is apparent that thecourt does not take cognizance of the inherently prejudicial nature of pre-mature payments, i.e., constituting a release of security.' 4In this writer's opinion, the most cogent reasoning supports the propo-sition that premature payments constitute a release of security. Takingthis view, it is unnecessary to inquire, as this court did, into the question ofactual damage. For corporate sureties, though not deserving of the favoritismaccorded their "simon-pure" predecessors, are nonetheless entitled to thebenefit of the express provisions in their contracts. If the obligee disposesof security which, under the contract, he is bound to hold for the benefitof the surety, he has certainly damaged that surety - at least, to the extentof the unauthorized payments.Michael H. KramerWITNESSES - PRIVILEGE AGAINST SELF-INCRIMINATIONAppellee sought an injunction against proceedings by the FloridaState Board of Architects to revoke his architect's certificate. He claimedimmunity from such a proceeding under a statute prohibiting prosecution,penalty or forfeiture against any person who testifies before any courtin a case involving violation of the statutes against bribery. Held, a pro-ceeding to revoke appellee's certificate amounts to a prosecution to effecta penalty or forfeiture as contemplated by the statute. Florida StateBoard of Architecture v. Seymour, 62 So.2d I (Fla. 1952).The privilege against self-incrimination arose in American law shortlybefore the formation of the Union' and is firmly established today byjudicial deterlnination.a Before the adoption of the Constitution fiveex Tel Union Indemnity Co. v. Shain, 334 Mo. 153, 66 S.W.2d 102 (1933); Barton v.Title Guaranty & Surety Co., 192 Mo. 561, 183 S.W. 694 (1916); Crouse v. Stanley,199 N.C. 186, 154 S.E. 40 (1930); St. John's College v. Aetna Indemnity Co., 201N.Y. 335, 94 N.E. 994 (1911).12. Clobe Indemnity Co. v. United Ry., 272 Fed. 607 (3d Cir. 1921); FirstNational Bank v. Fidclity & Deposit Co., 145 Ala. 335, 40 So. 415 (1906); Meyer v.Standard Accident and Ins. Co., 114 N.I.L. 483, 177 Att. 255 (1935); Lyons v.Kitchell, 18 N.M. 82, 134 Pac. 213 (1913).13. See note 9 supru.14. See note 10 supra.I. FLA. S'rx'r. § 932.29 (1951).2. See 8 WIlOSIRE, EVIDENCE § 2250 (3d ed. 1940).3. People v. Newnark, 312 Itl. 625, 144 N.E. 338 (1924); People v. Spain, 307CASES NOTEDstates had provided for this in their constitutions. 4  Since then, all thestates, except New Jersey and Iowa, have adopted the privilege; and thesetwo states have it in their common law.5 This privilege applies to civiland criminal cases alike whenever the testimony might tend to subject thewitness to criminal prosecution.0The privilege applies, not only where the witness's testimony maytend to subject him to criminal prosecution but, where lie may be exposedto a "penalty or forfeiture."' The distinction between a remedial statuteand a penal statute is that the penalty imposed by the former is not topunish a public wrong but to redress a private grievance. 8 Thus, the latterpenalty may be defined as a liability to pay money or yield up a publicprivilege by way of a punishment imposed by law.'In cases of disbarment proceedings against an attorney the courtshave held that such proceedings do not constitute a penalty or forfeiturewhich would be protected by immunity statutes.' The reasoning behindsuch decisions is that the purpose of a disbarment proceeding is not topunish but to determine, in the public interest, whether one should bepermitted to practice law." Thus, along similar lines of reasoning, theprivilege to practice medicine could be withdrawn when it became neces-sary to preserve public health, morals, comfort, safety, and the goodorder of society.12Architects are required to possess educational and moral qualificationssimilar to those of a doctor and lawyer."5 It has been reasoned that suchpositions are not held by inherent right, but are subject to prescribededucational and moral qualifications which must be continued after onehas been afforded the privilege to practice."In the instant case, the court reasons that the right to earn a livingis protected by the immunity statute. The reasoning in the disbarmentI11. 283, 138 N.E. 614 (1923); People v. Danziger, 238 Mich. 39, 213 N.W. 448(1927).4. N. C., 1776; Pa., 1776; Va., 1776; Mass., 1778; N. H., 1784.5. State v. Height, 117 Iowa 650, 91 N.W. 935 (1902); State v. Zdanowicz,69 N.J.L. 619, 55 AtI. 743 (Ct. Err. & App. 1903).6. Counselman v. Hitchcock, 142 U. S. 547 (1892); Ex Parte Frenkel, 17 Ala.563, 85 So. 878 (1920); Goytan v. Deasy, 85 Cal. 454, 259 Pac. 488 (1927); Over-man v. State, 194 Ind. 483, 143 N.E. 604 (1924); Dendy v. Wilson, 142 Tex. 460,179 S.W.2d 269 (1944).7. Lees v. United States, 150 U. S. 476 (1893).8. Schlage Lock Co. v. Pratt-Rymer Co., 46 F.2d 703 (D.C. N.D. Calif. 1931);Standard Oil Co. v. Roxana Petroleum Corp., 9 F.2d 453 (D.C. S.D. Ill. 1925);Perkins Oil Well Cementing Co. v. Owen, 293 Fed. 759 (D.C. S.D. Calif. 1923),9. WIcssoRF, EVIDENCE § 2257 p. 333 (3d ed. 1940).10. Fish v. State Bar, 214 Cal. 182, 4 P.2d 937 (1931); Matter of Gluck, 229App. Div. 490, 243 N.Y. Stpp. 334 (lst Dept. 1930); Re Rouss, 221 N. Y. 81,116 N.E. 782 (1917); Re Randell, 158 N Y. Z16, 52 N.E. 1106 (1899).1I. In re MacDonald, 56 Ariz. 120, 105 P.2d 1114 (1940); Light v. State Barof Cal., 14 Cal.2d 328, 94 P.2d 35 (1939); In re Carter, 59 Idaho 547, 86 P.2d 162(1938); In re Smith, 220 Minn. 197, 19 N.W.2d. 324 (1945).12. State ex rel Munch v. Davis, 143 Fla. 236, 196 So. 491 (1940).13. FLA. STAT. § 467.08 (1951).14. Commonwealth ex rel Ward v, Harington, 266 Ky. 41, 98 S.W.2d 53 (1936).MIAMI LAW QUARTERLYcases and the standards to which professional people in general are heldwould seem to belie this construction.It would seem that the immunity afforded by the statute in theinstant case has been extended too far. The privilege (including the usualimmunity statutes) traditionally only protect answers which injure in apenal sense. The effect of the decision has extended the statutory words"penalty or forfeiture" to an area more civil in nature. "The privilegeagainst self-incrimination is a rule of necessity beyond which it shouldnot be extended; its use should not be considered as affording the witnessa certificate of good character."' 1  Thus, in the words of Professor Wig-more, "The privilege cannot be enforced without enforcing crime, butthat is a necessary evil inseparable from it and not a reason for its exist-ence. We should regret the evil and not magnify it by approval."' 6Sheldon J. SchlesingerWORKMEN'S COMPENSATION - PENDENCY OF APPEAL ASTOLLING STATUTE OF LIMITATIONSPetitioner was awarded a workmen's compensation claim, but it wasreversed by the full Industrial Commission. The Circuit Court and theFlorida Supreme Court' affirmed the Commission's order. Thereupon,the petitioner attempted to have the Commission review the cause.Held, the Commission had no jurisdiction because of petition for reviewwas filed over one year after entry of the Commission's original reversal. 2The pendency of the petitioner's appeal from such order did not toll therunning of the limitation statute. Davis v. Combination Awning &Shutter Co., 62 So.2d 742 (Fla. 1953).Since modification and review statutes arc based upon statuton'rights rather than constitutional rights," the courts generally have inter-preted them very strictly. 4 'llcre are two ways in which the courts treatthe time limits in the review statutes-as a jurisdictional question" or as15. Scholl v. Bell, 125 K%. 750, 102 S.W. 248, 261 (1907).16. WIMORFt, ED NcE § 2251 p. 317 (3d ed. 1940).1. Davis v. Combination Awning & Shutter Co., 487 So.2d 436 (lia. 1950).2. FLA. STAT. §§ 440.27, 440.28 (1951).3. City of Miami v. Saco, 156 Fla. 634, 24 So.2d 115 (1945). See FL-. STAT.§440.27 for the statutory conditions that must be complied with in Florida for reviewof a compensation award.4. Winrod v. McFadden Publications, 187 F.2d 180 (7th Cir. 1951); Mitchelv. Town of Niagec, 51 So.2d 198 (Miss. 1951); Thomsen v. Null, 248 S.V.2d 6 (Mo.1952); Wills v. Stineman Coal & Coke Co., 170 Pa. Super. 446, 87 A.2d 104 (1952);Bucker v. Kapp Bros., 110 Pa. Super. 65, 167 Atd. 652 (1933); cf. Mallory v. Pitts-burgh Coal Co., 162 Pa. Super. 541, 58 A.2d 804 (1948). See Young v. McKenzie,46 So.2d 184 (Fla. 1950).5. Manrose v. Miami Shipbuilding Corp., 156 Mba. 402, 23 So.2d 733 (1945);See Concord Realty Corp. v. Romano, 30 So.2d 485 (I-la. 1947).

Witnesses -- Privilege Against Self-Incrimination

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Witnesses -- Privilege Against Self-Incrimination

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