Vanderbilt Law Review

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"According to their [the prosecution's] statement, a witness can never refuse to answer any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of a crime. This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony' which is necessary to convict any individual of a crime. It appears to the Court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself...What testimony may be possessed, or is attainable, against any individual, the Court can never know. It would seem then, that the Court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part' of a crime which is punishable by the laws." ...

This pronouncement by Chief Justice Marshall in Aaron Burr's trial has, as Wigmore observes, "ever since been accepted without controversy" as an exposition of the correct principle. But its application in particular cases has certainly not been free of difficulty. It is the purpose of this paper, on the basis of a necessarily rough classification, to examine the more recent federal cases, beginning with Mason v. United States, and then venture an appraisal of the current federal trend.

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