Suspects, Speak Up

For more than 300 years, Anglo-Saxon law has held that no defendant in a criminal trial can be compelled to testify. Last week the British section of the International Commission of Jurists reaffirmed that right. But what made news for lawyers on both sides of the Atlantic was the vigorous, closely reasoned dissent from the majority report by Barrister John Foster, 56, who is a Conservative M.P., former first secretary of the British embassy in Washington, and wartime head of the legal section of SHAEF in Europe.

A jovial giant with a perpetually shaggy mane and one of Britain's most brilliant legal minds, Foster contends that "any system of criminal justice must strive for the truth, and who better to assist in arriving at the truth than the chief suspect?" Foster does not demand that a witness be forced to testify, or even penalized if he chooses silence. But Foster would require the accused to listen to the questions put to him by the prosecutor and suffer "the inference of guilt" that may result from a refusal to answer.

In return, Foster offers considerable guarantees to the accused. He would bar from court all confessions obtained during police investigations, since, in every such confession, "there is an element of coercion by the police" either psychological or physical through the third degree. Therefore "it is better that confession should be given in the trial court, where the accused can be asked to explain his story in the light of all other evidence." Further, Foster would require that the accused not be called on to testify until the prosecution's evidence is concluded and a prima-facie case made out against him. The accused's counsel might still ask that the case be thrown out of court for lack of evidence, before his client was called.

Under present court practice, Foster feels, the prosecution is favored before a trial begins and the defense is favored once the parties go to court. Foster's dissent takes dead aim at this "sporting" theory of Anglo-Saxon law. Should his recommendations be adopted, says Foster, "I think that the English criminal trial would be less of a game or a contest and more of a serious inquiry as to the true nature of the crime and its real perpetrator. That should at least be the ideal towards which criminal justice should strive."

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