crim. law. By the common law no one is bound to accuse
himself. Nemo tenetur prodere seipsum. In England, by the statutes of
Philip and Mary, (1 & 2 P. & M. c. 13, 2 & 3 P. & M. c. 10,) the principles
of which have been adopted in several of the United States, the justices
before whom any person shall be brought, charged with any of the crimes
therein mentioned, shall take the examination of the prisoner, as well is
that of the witnesses, in writing, which the magistrates shall subscribe,
and deliver to the officer of the court where the trial is to be had. The
signature of the prisoner, when not specially required by statute, is not
indispensable, though it is proper to obtain it, when it can be obtained. 1
Chit. Cr. Law, 87, 2 Leach, Cr. Cas. 625.
2. It will be proper to consider, 1. The requisites of such examination.
2. How it is to be proved. 3. Its effects.
3. - 1. It is required that it should, 1st. Be voluntarily made, without
any compulsion of any kind, and, 2d. It must be reduced to writing. 1st.
The law is particularly solicitous to let the prisoner be free in making
declarations in his examination, and if the prisoner has not been left
entirely free, or did not consider himself to be so, or if he did not feel
at liberty wholly to decline any explanation or declaration whatever, the
examination is not considered voluntary, and the writing cannot be read in
evidence against him, nor can parol evidence be received of what the
prisoner said on the occasion. 5 C. & P. 812, 7 C. & P. 177, 1 Stark. R.
242, 6 Penn. Law Journ. 120. The prisoner, of course, cannot be sworn, and
make his statement under oath. Bull. N. P. 242, 4 Hawk. P. C. book 2, c.
46, 37, 4 C. & P. 564. 2a. The statute requires that the examination shall
be reduced to writing, or so much as may be material, and the law presumes
the magistrate did his duty and took down all that was material. Joy on
Conf. 89-92, 1 Greenl. Ev. 227. The prisoner need not sign the examination
so reduced to writing, to give it validity, but, if being asked to sign it,
he absolutely refuse, it will be considered incomplete. 2 Stark. R. 483, 2
Leach, Cr. Cas. 627, n.
4. - 2. The certificate of the magistrate is conclusive evidence of the
manner in which the examination was conducted. 7 C. & P. 177, 9 C. & P.
124, 1 Stark. R. 242. Before it can be given in evidence, its identity must
be proved, as well as the identity of the prisoner. When the prisoner has
signed the examination, proof of his handwriting is sufficient evidence
that he has read it, but if he has merely made his mark, or not signed it
at all, the magistrate or clerk must identify the prisoner, and prove that
the writing was duly read to him, and that he assented to it. l Greenl. Ev.
520, 1 M. & Rob. 395.
5. - 3. The effect of such an examination, when properly taken and
proved, is sufficient to found a conviction. 1 Greenl. Ev. 216.
Source: Bouviers Law Dictionary 1856 Edition
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