Response or Comment
Every now and then a new attack is made somewhere in the United States upon the rule prohibiting comment before the jury upon the fact that the defendant in a criminal case has not testified as a witness in his own behalf. At the present time an effort of this kind is being made in the Michigan legislature, and the introduction of the bill drew quite a little storm of protest from the State press as a dangerous inroad upon our ancient guarantees of personal liberty and security. In fact, however, it directly touches nothing more ancient than a statutory privilege which dates from the year 1861. By the Public Acts of that year the disability of parties to actions to testify as witnesses in this State was removed, but it was expressly provided that defendants in criminal cases could not be compelled to testify, but might do so or not at their own pleasure. (Act No. 125, §2). In 1881 an amendment to this statute was passed providing, as to the defendant in a criminal case, that "his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect." (Pub. Acts, 1881, No. 245). And this is the form it retains in the Judicature Act. (Ch. 17, §64).
Sunderland, Edson R. "Safeguarding the Criminal Defendant." Mich. L. Rev. 15 (1917): 423-5.