Ward, Hugh T.

English

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Louisiana Law ReviewVolume 19 | Number 4June 1959Evidence - Prejudicial Effects of UnansweredQuestionHugh T. WardThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationHugh T. Ward, Evidence - Prejudicial Effects of Unanswered Question, 19 La. L. Rev. (1959)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol19/iss4/13NOTESEVIDENCE - PREJUDICIAL EFFECTS OF UNANSWERED QUESTIONDuring the course of a trial for murder the district attorneyasked a state's witness whether or not the defendant had beengiven a lie detector test. Defense objected to the question andthe district attorney stated that he would "withdraw it if anyobjection were made." The objection was sustained, but a mo-tion by the defense for a mistrial on the ground that the prosecu-tion had, in effect, commented on the accused's failure to takethe stand was overruled. The court did not instruct the juryrelative to the matter and the district attorney's question wasnever answered. On appeal from conviction, held, affirmed. Al-though it is reversible incurable error for the district attorneyto call to the attention of the jury by direct statement or plaininference the fact that the defendant has not testified, the ques-tion here involved cannot be construed as a reference to that fact.State v. Stahl, 236 La. 362, 107 So.2d 670 (1958).The majority of common law jurisdictions prohibit commenton the failure of an accused to testify.' A minority of the stateshold that such comment cannot be cured by instruction from thecourt.2 This latter position has been adopted by Louisiana.3 Al-though the argument has been made that the prohibition againstcommenting on the accused's failure to take the stand was abol-ished with the enactment of the Louisiana Code of Criminal Pro-cedure in 1928,4 the Louisiana Supreme Court has found such asecond offense was not consummated when the former prosecution was initiated;or"(2) the former prosecution was terminated, after the information was filedor the indictment found, by an acquittal or by a final order or judgment for thedefendant which has not been set aside, reversed or vacated and which acquittal,final order or judgment necessarily required a determination inconsistent with a'fact which must be established for conviction of the offense of which the defendantis subsequently prosecuted."1. 1 WHARTON, CRIMINAL EVIDENCE §§ 146, 147 (12th ed. 1955). See Annot.,84 A.L.R. 784 (1933).2. Rowe v. State, 87 Fla. 17, 98 So. 613 (1924) ; Quinn v. People, 123 Ill.333, 15 N.E. 46 (1888) ; State v. Cameron, 40 Vt. 555 (1868) ; Elliott v. Com-monwealth, 172 Va. 595, 1 S.E.2d 273 (1939) ; 1 WHARTON EVIDENCE § 146 (12thed. 1955).3. State v. Hoover, 219 La. 872, 54 So.2d 130 (1951) ; State v. Richardson,175 La. 823, 144 So. 587 (1932); State v. Sinigal, 138 La. 469, 70 So. 478(1915) ; State v. Marceaux, 50 La. Ann. 1137, 24 So. 611 (1898) ; The Work ofthe Loui8iana Supreme Court for the 1951-1952 Term - Criminal Precedure, 13LOUISIANA LAW REvIEw 326, 337 (1953).4. The argument is: (1) that Act 29 of 1886, Act 185 of 1902, and Act 41 of1904, in dealing with the competency of the accused as a witness, contained a pro-vision that his failure to testify should not be construed for or against him; (2)further that Act 157 of 1916 provided that the neglect or refusal of the accusedto testify should create no presumption against him; (3) since Article 461 of theCode of Criminal Procedure superseded the 1916 act and provides simply that "a'19591LOUISIANA LAW REVIEW [Vol. XIXprohibition in the State Constitution.5 The motion for a mistrialin the instant case was grounded upon the case of State v.Hoover.6 In that case the district attorney remarked that themanner in which the defendant observed and discussed withcounsel certain photographs of the scene of the crime showedthat he was familiar with the actual scene, rather than just thephotographs. The opinion, authored by Justice Moise, found nouncertainty in the implication which flowed from the district at-torney's statements. The court said that the remarks, thoughmade without malice, "infringed the defendant's constitutionalprivilege against circumstantially forced self incrimination,which the defendant had to cure, if he so desired, by the waivingof his constitutional right not to take the stand, as provided inArticle 1, Section 11 of the Constitution of 1921, and likewise bythe provisions of the Criminal Code, Art. 461." 7 However, onlythree of the seven Justices were of the opinion that the remarksmade by the district attorney were a comment on the defendant'sfailure to take the stand. Other members of the court based theirdecision to grant a new trial on other grounds.8 It follows, there-fore, that the Hoover opinion is of questionable authority to sus-tain a result contrary to that reached in the instant case. It issubmitted that the instant case was correctly decided on the pointthat there was no comment on the failure of the defendant toperson so charged shall, at his own request, but not otherwise, be deemed a compe-tent witness," (4) therefore the prohibition against commenting on an accused'sfailure to take the stand was thereby removed. An attempt further to strengthenthis argument is made by citing paragraph 15 of the Redactor's explanation ofArticle 461 in LA. CODE CRIM. LAW AND PROC. ANN. xvii (Dart, 1942), whereinthe Redactors stated that their intention was to eliminate the rule prohibiting thedistrict attorney from commenting on the accused's failure to take the stand. SeeJustice Hawthorne's dissenting opinion in State v. Hoover, 219 La. 872, 54 So.2d130 (1951), and his concurring opinion in State v. Bentley, 219 La. 893, 54 So.2d137 (1951), to this effect. However, it would seem that the fallacy of this argu-ment is aptly demonstrated in a noteworthy opinion by Chief Justice Fournet inthe Bentley case, in which he points out that, although the Redactors sought toeliminate the rule prohibiting comment by placing express grants to that effectin Articles 384 and 385, the legislature rejected and deleted the portions of thesearticles designed to accomplish the Redactor's purpose.5. LA. CONST. art. I, § 11; State v. Hoover, 219 La. 872, 54 So.2d 130 (1951).6. 219 La. 872, 54 So.2d 130 (1951).7. Id. at 873, 54 So.2d at 131.8. Chief Justice Fournet delivered a separate concurring opinion in which heagreed that the accused was entitled to a new trial. Justice McCaleb, in concurring,also was of the view that the accused was entitled to a new trial, but on theground that the district attorney's remarks were an expression of his belief of thedefendant's guilt, based upon the defendant's demeanor and not solely upon evi-dence adduced at the trial. In dissenting from a refusal to grant a rehearing,Justice Hamiter was in accord with the views expressed by Justice McCaleb andfelt that a rehearing was necessary, since a majority of the court did not agreethat comment on the accused's failure to testify had been made. Justice Hawthornedissented.1959] NOTES 883testify. In this respect the decision is in line with other priorLouisiana jurisprudence. 9 However, questions such as the oneasked in the instant case give rise to other noteworthy problems.The earliest appellate decision dealing with the admissibilityof the results of a lie detector test is Frye v. United States,10 de-cided by the Court of Appeals for the District of Columbia in1923. In that case the court held that the lie detector had not yetgained sufficient scientific recognition to justify the admissionof expert testimony in connection with its use. With rare excep-tion 1 subsequent cases have followed this result. 12 It has beensuggested that the reasons given for excluding the result of thelie detector test in the Frye case are not accurate today. 18 How-ever, the overwhelming weight of authority is still to the effectthat the results of lie detector tests are inadmissible. 4 Innumer-able cases at common law have applied the principle that inad-missible evidence cannot be laid before a jury under the guise ofa question propounded to a witness.' 5 When the result is to plant9. In State v. Delatte, 219 La. 715, 53 So.2d 906 (1951), the defendant wason trial for theft of cattle. In his closing argument the district attorney stated:"He can't explain by a single witness that has taken the witness stand where hegot those cattle from." On appeal the Supreme Court found no comment on thefailure of the defendant to testify. In State v. Bentley, 219 La. 893, 54 So.2d 137(1951), the district attorney's remark that the evidence was uncontroverted anduncontradicted was found to be proper argument. The statement made in Statev. Martinez, 220 La. 899, 57 So.2d 888 (1952) appears particularly difficult todistinguish from that in the Hoover case. The defendant was on trial for bur-glary and in his opening statement the district attorney declared: "Where wasLouis Bommarito that night? Nobody knows but Louis Bommarito and the policeofficers." The Supreme Court found no direct or indirect reference to the failureof the defendant to take the stand.10. 293 Fed. 1013 (D.C. Cir. 1923).11. See People v. Houser, 84 Cal. App.2d 686, 193 P.2d 937 (1948), where theresults were admitted upon stipulation of both parties. In People v. Kenny, 167N.Y. Misc. 51, 3 N.Y.S.2d 348 (1938), an unappealed trial court case, the resultsof a lie detector test were admitted over the objection of opposing counsel. How-ever, this case must be considered in the light of a later New York trial courtcase, People v. Forte, 167 N.Y. Misc. 868, 4 N.Y.S.2d 913 (1938), where the courtrefused to admit the results of a lie detector test.12. Colbert v. Commonwealth, 306 S.W.2d 825 (Ky. App. 1957); Lusby v.State, 217 Md. 191, 141 A.2d 893 (1958) ; Henderson v. State, 94 Okla. Crim.45, 230 P.2d 495 (1951). See Annot., 23 A.L.R.2d 1306 (1952).13. See Wicker, The Polygraphic Truth Test and the Law of Evidence, 22TENif. L. REV. 711 (1953), where Dean Wicker comments on the finding in theFrye case. "This statement is undoubtedly an accurate description of the statusof lie detector techniques in 1923. It is probably also accurate for the 1930's andthe early 1940's. However, it appparently does not accurately portray present daystandards, nor the developments likely to be projected within the next decade ortwo." Id. at 723.14. See note 13 supra.15. See 6 WiOMoRE, EVIDENCE § 1808 (3d ed. 1940) and Annot., 109 A.L.R.1089 (1937), and cases cited therein. In Michelson v. United States, 335 U.S. 469(1948), Justice Jackson points up the principle in noting that counsel was not"asking a groundless question to waft an unwarranted innuendo into the jurybox." It is interesting to note in this connection that the Canons of Ethics of884 LOUISIANA LAW REVIEW [Vol. XIXundue prejudice in the minds of the jury, a new trial will begranted. The cases which have been reversed for such conductof counsel fall into two general categories: (1) when the mattercontained in the question is so clearly inadmissible that it wouldimpeach "the legal learning of the attorney to say that he did notknow that they were manifestly improper and wholly unjusti-fiable,"'16 or (2) when the inadmissibility of the matter alludedto is not so clear, but counsel has been forewarned by an admon-ishment from the court and persists in pursuing the same line ofquestioning.'7 In both instances, of course, the court must de-termine if the accused has suffered sufficient prejudice to war-rant a new trial. The cases by no means afford a clear-cut ruleas to when instruction by the court will remove the prejudicialeffects flowing from an improper question. However, in the finalanalysis the result should turn on whether or not the accusedhas suffered incurable prejudice. Improper remarks of counselare generally held to be cured by instruction from the court,'sexcept in extreme cases.19 Another point which should be con-sidered in determining the prejudice suffered by a defendantfrom an improper question is the effect his own objection mighthave in the minds of the jury. It goes without saying that anobjection will frequently emphasize the fact suggested by thequestion more effectively than if the objection were not made. 20the Louisiana State Bar Association provide that "a lawyer shall not offer evidencewhich he knows the Court should reject, in order to get the same before the juryby arguments upon any point not properly calling for determination by him."ARTICLES OF INCORPORATION OF TILE LOUISIANA STATE BAR ASSOCIATION, art. 14,§ 22.16. State v. Rhys, 40 Mont. 131, 132, 105 Pac. 494, 490 (1909); People v.Jones, 293 Mich. 409, 292 N.W. 350 (1040). See Annot., 109 A.L.R. 1089 (1937).17. 6 WIGMORE, EVIDENCE § 1808 (3d ed. 1940).18. See Annot., 84 A.L.R. 784 (1933). In Lusby v. State, 217 Md. 191, 141A.2d 893 (1958), the prosecutrix in an incest case gave an affirmative answerwhen questioned by the district attorney as to whether she had taken a lie de-tector test. An objection to the question was sustained and the court charged thejury to disregard. On appeal the instruction was held to have cured any prejudicesuffered by the accused. The objection made by the defense in the Lusby case putthe accused in not much better a position than the defendant in the instant case.The jury would certainly be justified in inferring from defense's objection that hedid not desire the results of the tests revealed. This would ground the inferencethat the tests were unfavorable to the accused. It is submitted that defense counselin the Lusby case would have profited more by making no objection at the time.The question had already been answered and the objection only served as the basisof the aforementioned inferences. Conversely, defense in the instant case could notafford such tactics. The question had not been answered, and had he not objectedto the question when asked he would probably have been deemed to have waivedhis objection.19. See Comment, 10 LOUISIANA LAW REVIEW 486 (1950), which deals withthe two most common types of incurable remarks in Louisiana: (1) a commenton the defendant's failure to testify, and (2) appeals to racial prejudice.20. For an illustration of the problem, see Berry v. State, 10 Ga. 522 (1851),NOTESAn analysis of the instant case will aid in determining theprejudice suffered by the defendant from the unanswered ques-tion of whether he had been given a lie detector test. As a prac-tical matter there are two inferences which a jury might drawfrom such a question: (1) that the defendant has been requestedto submit to a lie detector test and has refused, or (2) that thedefendant has been given a lie detector test and is not willing toreveal the results thereof. Either inference would take its tollin prejudice against the accused. If the inferences are unfound-ed, then the accused has a choice of either taking the stand tocorrect them, in which case he may be cross examined upon thewhole of the case and impeached as any other witness,21 or re-maining silent and suffering the prejudicial effects of the ques-tion. A question such as that asked in the instant case mayachieve undesirable results even before trial. Having knowledgethat the question may be asked, the accused would be in a some-what better position if he agreed to submit to a lie detector testif so requested. Were the accused to refuse the test and the ques-tion were asked, the undesirable inference of the defendant's re-fusal to submit to the test could not be cured, even by his takingthe stand. Further, the defendant's objection to the questionwould only serve to implant the matter more firmly in the mindsof the jury. On the other hand, if the defendant agrees to takethe test and the results are favorable to him, then in all proba-bility the prosecution will refrain from referring to the test. Ifthe results of the test are unfavorable to the accused, he may stillescape the damaging effect of his own objection, because an af-firmative answer to the question would dispel any inference asto his refusal to take the test. Only in the event the prosecutiongoes further and attempts to introduce the results of the testwould the objection giving rise to the above noted inferences haveto be interposed.It is submitted that the court correctly concluded that thequestion in the instant case did not amount to a comment on thedefendant's failure to take the stand. However, in the opinionof the writer the case should not be interpreted as disposing ofthe other issues presented in this Note. They were not stated aswhere Lumpkin, J., in commenting upon a statement by the prosecutor that thedefendant's slave had confessed to his master's guilt, stated that the judge mustinterfere without an objection by the opposing counsel; because the latter's objec-tion is likely to be met by the offending counsel with the sarcastic turn, "Yes,gentlemen, I have touched a tender spot, the galled jade will wince."• 21. LA. R.S.. 15:376, 462 (1950).1959]LOUISIANA LAW REVIEWthe basis of the objection or the motion for a mistrial in the lowercourt and were not urged to the Supreme Court on appeal.Hugh T. WardLABOR LAW - CONFLICT BETWEEN STATE ANTI-TRUST LAW ANDCOLLECTIVE BARGAINING AGREEMENTPlaintiff, a union member, brought an action under the Ohioanti-trust statute' to restrain a union and common carriers fromcarrying out that part of a collective bargaining agreementwhich prescribed minimum rentals for vehicles leased fromdrivers. Plaintiff drove equipment which he owned and leasedto carriers on terms and conditions that differed substantiallyfrom those of the collective bargaining agreement. Plaintiff al-leged that the fixing of prices at which the vehicles could beleased violated the state anti-trust law by placing restrictions onvehicles used in commerce. The defendant contended that thecontract provisions were to protect against leasing vehicles froman owner-driver at a rental less than the actual cost of operation,thereby making the driver apply part of his negotiated wage tothe operating expenses of the vehicle. The Ohio courts enjoinedthe parties from giving effect to these minimum rental pro-visions on the basis that the regulation was price fixing, whichviolated the Ohio anti-trust law.2 On certiorari to the UnitedStates Supreme Court, held, reversed. The objective of the mini-mum rental provision was the protection of the negotiated wagescale. The Ohio anti-trust law could not be applied to preventthe contracting parties from carrying out their agreement on asubject matter as to which the federal law directs them to bar-gain. Local 24, Teamsters v. Oliver, 79 S. Ct. 297 (U.S. 1959).The power to regulate interstate commerce is delegated tothe federal government by the Constitution, and under thispower Congress has regulated the field of labor-management re-lations. 4 Congress has not completely occupied the field, but has1. OHIO RFV. CODE § 1331.01 (1953).2. Appeal to the Ohio Supreme Court was dismissed for want of a debatableconstitutional question. Local 24, Teamsters v. Oliver, 167 Ohio St. 299, 147N.E.2d 856 (1958).3. U.S. CONST. art. I, § 8; Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).4. Wagner Act, 49 STAT. 449 (1935), 29 U.S.C. §§ 151-166 (1952); Taft-Hartley Act, 61 STAT. 136 (1947), 29 U.S.C. §§ 141-188 (1952). See NLRB v.Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).[Vol. XIX

Evidence - Prejudicial Effects of Unanswered Question

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Evidence - Prejudicial Effects of Unanswered Question

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