People v. Owens, 22 N.Y.2d 95 (1968)
It is reversible error to permit a co-defendant to call another co-defendant as a witness, knowing that the witness will invoke their Fifth Amendment right against self-incrimination, because of the inherent prejudice to the witness, even if the court provides a curative instruction.
Summary
Robert Owens and Charline Brown were convicted of grand larceny for taking money from Clarice Harriss through false pretenses. During the joint trial, Brown called Owens as a witness, knowing he would invoke his Fifth Amendment privilege against self-incrimination. The trial court allowed this, providing a cautionary instruction to the jury. The Appellate Division reversed Owens’ conviction, finding this prejudicial. The Court of Appeals affirmed, holding that compelling a defendant to invoke the Fifth Amendment in front of the jury is inherently prejudicial, and a curative instruction is unlikely to eliminate the harm. The court also discussed the importance of considering severance when a co-defendant’s testimony is needed.
Facts
Clarice Harriss was approached by Owens at a bank. Owens showed her an envelope, claiming it contained $15,000 and that she had left it in a phone booth. Brown then prompted Owens to open the envelope. Owens, Brown and Harriss then agreed to split the money, with Harriss paying $2,000 for the right to receive $5,000. Harriss withdrew $1,000 from her savings and gave it to Owens, along with the $318 she had withdrawn earlier. Owens and Brown then disappeared with the money.
Procedural History
Owens and Brown were jointly indicted for grand larceny in the first degree. Before trial, Brown moved for a mistrial and severance because she intended to call Owens as a witness, knowing he would invoke his Fifth Amendment privilege. The motion was denied. Brown renewed the motion at the close of the People’s case; it was denied. Brown then called Owens as a witness. Owens invoked his Fifth Amendment privilege. The trial court denied Owens’ motion for a mistrial. The jury convicted both defendants. The Appellate Division reversed Owens’ conviction. The People appealed to the Court of Appeals.
Issue(s)
Whether the trial court committed reversible error by allowing co-defendant Brown to call co-defendant Owens to the witness stand, knowing that Owens would invoke his Fifth Amendment privilege against self-incrimination before the jury.
Holding
Yes, because compelling a defendant to invoke the Fifth Amendment privilege in front of the jury is inherently prejudicial, and instructions are unlikely to cure that prejudice.
Court’s Reasoning
The Court of Appeals agreed with the People’s concession that it was error to allow Brown to call Owens to the stand. The court stated, “[T]he privilege against self incrimination is violated whenever a criminal defendant is compelled to take the stand and claim his privilege, whether at the behest of the prosecution or a codefendant.” The court recognized the right of a defendant to call a co-defendant as a witness but noted that this right is qualified when a joint trial is involved and the witness invokes their Fifth Amendment right. The court reasoned that the stigmatizing effect of claiming the privilege before the jury is so powerful that curative instructions are unlikely to eliminate the prejudice. The court noted that the proof of guilt was not overwhelming, so the error was not harmless beyond a reasonable doubt. The court emphasized that trial courts must carefully consider whether to sever trials when a defendant intends to call a co-defendant as a witness, especially where there is a showing of a need for the co-defendant’s testimony. “But there must be a showing of intention to call the codefendant as a witness and a need to do so; the mere statement of intention is hardly sufficient unless the circumstances indicate sincerity of intention and reasonable need.” A defendant must make the severance motion “as early as it is reasonably feasible.”