Instead, appellant gave additional testimony, and it was to impeach that additional testimony that the Government used the illegally obtained statements. But even where an accused gives testimony in addition to the denial of the alleged crime, the prosecution is not permitted to use the inadmissible statements in their entirety. As the Court of Appeals explained in Tate:
'In the instant case, it is plain that the court did not admit any statement which was per se inculpatory. None of the acts described in the challenged statements, in and of themselves, constituted 'elements of the case against him.' The statements, even if true and believed by the jury, described lawful proper acts in which appellant as well as his companions were free to engage.
'Thus it is not a case where, under the claim of impeachment, a full and detailed confession of a crime was allowed to go to the jury to rebut specific and limited exculpatory statements made by the defendant on direct examination. * * *' 109 U.S.App.D.C. at 16, 283 F.2d at 380.
8. The fact that petitioner here did not take the stand in his trial may have been highly prejudicial to his case. The importance the jury attaches to the accused's not taking the stand and denying his guilt cannot be overemphasized. As one noted authority on criminal law has written:
'* * * in 99 per cent * * * of all the criminal cases tried in the eighty-six judicial districts at the federal level, defendants who did not take the stand were convicted by juries. I think this is perhaps the result of the organized assault by congressional committees that has been made on the constitutional privilege against self-incrimination over the past decade. The fact of the matter is that a defendant who does not take the stand does not in reality enjoy any longer the presumption of innocence.' Williams, The Trial of a Criminal Case, 29 N.Y.S.BAR BULL. 36, 42 (1957).
9. In this case, the necessity for the petitioner's testifying was even greater than usual. All morning and afternoon of the day of the trial the Government called witnesses and presented evidence. When the petitioner's turn came, no defense was offered; not even the petitioner took the stand to deny his guilt. In view of this situation, with all the evidence on one side and none on the other, it was not surprising that the jury concluded the petitioner was guilty.
10. Counsel for petitioner understandably was unprepared for the situation that developed suddenly at the end of the Government's case. He had planned from the beginning to call petitioner as the sole defense witness, but he had no anticipated the problem created by the inadmissible statements. Trial counsel did not know and thus could not inform petitioner of the applicable law. Counsel sought a ruling from the court, but the request was denied. Counsel, believing that the court wanted to conclude the case and submit it to the jury that afternoon, felt impelled to make a quick decision on whether to put the petitioner on the stand. Finally, counsel did not ask the court for a recess of the trial in order to determine the applicable law.
11. As a result of these circumstances, petitioner was not properly and fully informed of the state of the law. Without this essential knowledge no meaningful decision could be made as to whether or not petitioner should testify. Unquestionably, if petitioner had been informed of the applicable law, he would have testified in his own behalf.
12. The failure to inform petitioner of the applicable law deprived him of a fair trial. Where the defense is substantially weakened because of the unawareness on the part of defense counsel of a rule of law basic to the case, the accused is not given the effective representation guaranteed him by the Constitution. People v. Ibarra, 34 Cal.Rptr. 863, 386 P.2d 487 (1963) (Traynor, J.).
13. In view of the foregoing, the petitioner's conviction must be, and it is hereby, set aside.
n* Sitting by designation pursuant to 28 U.S.C. 291(c).