New York Law Review

Tag: Fifth Amendment

  • People v. Berry, 25 N.Y.3d 116 (2015): Admissibility of Witness Testimony and Expert Testimony on Eyewitness Identification

    25 N.Y.3d 116 (2015)

    A trial court does not abuse its discretion when it permits a witness to be impeached by a prior inconsistent statement, provided the testimony at trial was adverse to the party calling the witness, nor does it abuse its discretion in excluding certain aspects of expert testimony, provided the expert testimony is not based on principles that are generally accepted within the relevant scientific community.

    Summary

    The New York Court of Appeals addressed several evidentiary issues in a murder case. The defendant argued the trial court erred by allowing a witness to invoke his Fifth Amendment privilege, by permitting impeachment of a witness with a prior inconsistent statement, and by excluding certain expert testimony. The Court held that the prosecutor did not call the witness solely to elicit the privilege. The Court further held the trial court properly allowed impeachment of the witness with a prior inconsistent statement because the testimony at trial was adverse to the prosecution. Finally, the Court affirmed the exclusion of certain expert testimony on eyewitness identification, holding that the excluded testimony on “event stress” was not generally accepted within the relevant scientific community and thus within the court’s discretion to exclude it.

    Facts

    In 2002, there was an altercation between the defendant and a passenger, Korin Bush, in a vehicle driven by Josiah Salley. Ninety minutes later, Salley and Bush approached the same intersection. Bush saw the defendant and another man by a fence. As the light changed, the defendant ran toward their vehicle and fired several shots, killing Salley. The defendant evaded capture for almost two years, but was eventually identified by Bush in a lineup. At trial, the defendant was found guilty as charged. At a second trial, Kevin Kirven, who had been with the defendant on the day of the shooting, was called by the prosecution. Kirven invoked his Fifth Amendment privilege to several questions. Kirven then testified that he was at the park when the shooting occurred. The prosecutor then sought to impeach Kirven with his prior statement to the police. The defendant presented an expert in eyewitness identification. The court allowed testimony relative to weapon focus and witness confidence, but not event stress.

    Procedural History

    The defendant was convicted of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon. The Appellate Division reversed the judgment and ordered a new trial. At the second trial, the defendant was again convicted. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the trial court committed reversible error by allowing the prosecution to call a witness to elicit his Fifth Amendment privilege?

    2. Whether the trial court improperly allowed the prosecution to impeach a witness with a prior inconsistent statement?

    3. Whether the trial court deprived the defendant of his right to a fair trial by precluding his identification expert from testifying about the effect of high stress on the accuracy of an identification?

    Holding

    1. No, because the People did not call Kirven for the sole purpose of eliciting his invocation of the privilege.

    2. No, because Kirven’s trial testimony affirmatively damaged the People’s case.

    3. No, because the trial court did not abuse its discretion by precluding the expert testimony regarding the effect of event stress.

    Court’s Reasoning

    The Court held that it is reversible error for a trial court to permit the prosecutor to deliberately call a witness for the sole purpose of eliciting a claim of privilege. However, here, the Court found that the People did not call Kirven solely to elicit the privilege. The Court considered the scope of Kirven’s testimony. The trial court did not err in allowing the People to introduce Kirven’s redacted statement to impeach his credibility. The Court further held that the witness’s testimony that he heard only one shot and did not see the defendant firing at the car had the possibility of jeopardizing the charges of both second-degree murder and attempted murder and affirmatively damaged the People’s case. Finally, the Court found that the trial court did not abuse its discretion in precluding the expert’s testimony regarding event stress because the expert testimony was not based on principles that are generally accepted within the relevant scientific community. The Court acknowledged that the trial court permitted the expert to testify in two key areas — witness confidence and weapon focus.

    Practical Implications

    This case provides guidance on the limits of calling a witness for the purpose of eliciting a claim of privilege. Prosecutors and defense attorneys should be wary of the potential for improper inferences. The case underscores the importance of carefully evaluating whether a witness’s testimony is adverse enough to warrant impeachment with prior inconsistent statements. Attorneys should be prepared to argue that the trial court’s ruling was correct because the testimony was contrary to prior statements made by the witness. Finally, the case emphasizes the importance of establishing the scientific reliability of expert testimony on eyewitness identification. It also emphasizes the importance of making a record concerning reliability, so that an appellate court can review the trial court’s exercise of discretion.

  • El-Dehdan v. El-Dehdan, 26 N.Y.3d 116 (2015): Civil Contempt Requires Knowledge of a Lawful Court Order, Prejudice, and Non-Compliance

    26 N.Y.3d 116 (2015)

    Civil contempt requires a lawful court order, knowledge of the order, disobedience, and prejudice to the rights of a party, but does not necessarily require a finding of wilfulness.

    Summary

    In El-Dehdan v. El-Dehdan, the New York Court of Appeals addressed the elements necessary to establish civil contempt in a matrimonial proceeding. The court held that a party could be held in civil contempt for failing to comply with a court order to deposit the proceeds from property sales, even if the initial order restraining the property sales was arguably invalid. The Court clarified that civil contempt requires a lawful court order, knowledge of the order, disobedience, and prejudice to the rights of a party, but not necessarily a finding of wilfulness. Additionally, the court found that a negative inference could be drawn from a party’s invocation of the Fifth Amendment in a civil proceeding, especially when the party fails to present evidence supporting their inability to comply with the order. This case underscores the importance of complying with court orders, even if their validity is questioned, and clarifies the burdens of proof in civil contempt proceedings, particularly when a party invokes their Fifth Amendment rights.

    Facts

    Jacqueline El-Dehdan initiated a divorce action against Salim El-Dehdan. In January 2010, the court issued an order requiring Salim to deposit the proceeds from the sale of two properties into an escrow account. Salim had previously sold the properties, and did not deposit the funds as ordered. Jacqueline moved for civil and criminal contempt. At the contempt hearing, Salim invoked his Fifth Amendment right against self-incrimination when questioned about the proceeds. The trial court found Salim in civil contempt. The Appellate Division affirmed, and the Court of Appeals granted leave to appeal.

    Procedural History

    Jacqueline El-Dehdan sued Salim El-Dehdan for divorce. The trial court issued a series of orders, including the January 2010 order that is the subject of this appeal. The trial court initially found Salim in contempt, but then released him. Subsequently, the trial court, after a hearing, again found Salim in civil contempt. The Appellate Division affirmed the civil contempt finding. The Court of Appeals granted leave to appeal to address questions regarding the requirements for civil contempt, particularly concerning the role of wilfulness and the invocation of the Fifth Amendment.

    Issue(s)

    1. Whether the plaintiff established the necessary elements of civil contempt, including a wilful violation of a lawful court order.

    2. Whether the defendant was denied the opportunity to collaterally attack the January 2010 order.

    3. Whether the court could draw a negative inference from the defendant’s invocation of his Fifth Amendment right against self-incrimination.

    Holding

    1. No, because the plaintiff established all the necessary elements for civil contempt, including a clear order, knowledge, disobedience, and prejudice, but wilfulness is not required.

    2. No, because the defendant was not entitled to collaterally attack the January 2010 order in this contempt proceeding.

    3. Yes, because the court was entitled to draw a negative inference from the defendant’s invocation of his Fifth Amendment right, given his failure to provide evidence of his inability to comply with the order.

    Court’s Reasoning

    The Court of Appeals reaffirmed the elements of civil contempt, citing Matter of McCormick v. Axelrod. The court stated that a finding of civil contempt requires (1) a lawful order of the court, clearly expressing an unequivocal mandate; (2) that the order has been disobeyed; (3) that the party to be held in contempt had knowledge of the order; and (4) that prejudice to the right of a party to the litigation must be demonstrated. The court emphasized that wilfulness is not a required element for civil contempt under New York law, differentiating it from criminal contempt, where wilfulness is explicitly required. The court found that the January 2010 order was lawful, and defendant had knowledge and did not comply with the clear mandate to deposit the proceeds. Furthermore, defendant’s actions denied plaintiff equitable distribution. The court also held that the defendant could not collaterally attack the January 2010 order in the contempt proceeding. Finally, the court held that the trial court could draw a negative inference from defendant’s invocation of the Fifth Amendment, because defendant had the burden to present evidence of inability to comply with the order.

    The court cited Judiciary Law § 753(A) in its holding, stating, “a court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced.”

    Practical Implications

    This case emphasizes the significance of complying with all court orders, even if their initial validity is contested. Parties subject to court orders must take all reasonable steps to comply, regardless of whether they believe the underlying order is correct. Failure to do so may result in a finding of civil contempt, even in the absence of wilfulness. The case also clarifies the scope of the Fifth Amendment in civil proceedings. While a party can invoke the Fifth Amendment, they are not relieved of their evidentiary burdens. If a party wishes to avoid the negative inferences that may arise from invoking the Fifth Amendment, especially in a joint civil and criminal contempt proceeding, they should seek remedies such as bifurcating the proceedings. Finally, the case underscores the importance of detailed financial disclosures in matrimonial proceedings and that vague claims of inability to pay are insufficient to avoid a finding of contempt.

  • People v. Smart, 23 N.Y.3d 213 (2014): Forfeiture of Confrontation Rights Through Witness Tampering

    People v. Smart, 23 N.Y.3d 213 (2014)

    A defendant forfeits the right to confront a witness when the defendant’s misconduct is a significant cause of the witness’s decision not to testify, even if the witness also has a lawful basis, such as the Fifth Amendment, for refusing to testify.

    Summary

    Floyd Smart was convicted of burglary based, in part, on grand jury testimony of Jane Doe, an accomplice who later refused to testify at trial, invoking her Fifth Amendment rights. The prosecution argued Smart forfeited his confrontation rights by intimidating Doe. The Court of Appeals held that the trial court properly admitted Doe’s grand jury testimony because Smart’s actions significantly contributed to Doe’s decision not to testify, regardless of her Fifth Amendment privilege. This decision reinforces the principle that defendants cannot benefit from their own misconduct in preventing witnesses from testifying.

    Facts

    Smart, along with Robert Verstreate and Jane Doe, planned a burglary. Doe waited in the car while Smart and Verstreate entered the house. The homeowner arrived, and Doe sounded the horn to alert Smart and Verstreate. The three were arrested, and Doe cooperated with authorities, testifying before the grand jury and receiving transactional immunity. Doe was later released and absconded. Prior to trial, the prosecution sought to introduce Doe’s grand jury testimony, alleging Smart had tampered with her. Jailhouse phone recordings revealed Smart threatening Doe and urging his mother to help her avoid testifying.

    Procedural History

    The County Court held a Sirois hearing to determine the admissibility of Doe’s grand jury testimony. The court granted the People’s motion to admit Doe’s testimony. Smart was convicted at trial. He moved to set aside the verdict, which was denied. The Appellate Division modified the sentence but otherwise affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the trial court erred in admitting Doe’s grand jury testimony when Doe invoked her Fifth Amendment privilege and the defendant claimed her unavailability was not a direct result of his actions.

    Holding

    Yes, the trial court did not err because the People presented clear and convincing evidence that Smart’s misconduct was a significant cause of Doe’s decision not to testify, thus forfeiting his right to confront her, even if she also had a valid Fifth Amendment claim.

    Court’s Reasoning

    The Court of Appeals affirmed that a defendant forfeits their right to confrontation if they procure a witness’s unavailability through violence, threats, or chicanery. The court emphasized that the People must demonstrate by clear and convincing evidence that the defendant engaged in misconduct aimed at preventing the witness from testifying and that those misdeeds were a significant cause of the witness’s decision not to testify. The Court found that Smart’s threats to Doe, his attempts to persuade her to leave town, and his mother’s actions at his behest, all demonstrated a clear intent to prevent Doe from testifying. The court reasoned that Doe’s subsequent invocation of her Fifth Amendment right did not negate the forfeiture, as Smart’s misconduct significantly contributed to her unavailability. The Court stated, “[W]here it has been shown that the defendant procured the witness’s unavailability through violence, threats or chicanery,” the defendant “may not assert either the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness’s out-of-court declarations”. The Court distinguished this case from *People v. Hamilton*, noting that in *Hamilton*, there was no evidence the defendant threatened the witness, unlike in Smart’s case, where ample evidence of threats and attempts to dissuade Doe from testifying existed. The Court concluded that allowing a defendant to benefit from their misconduct would undermine the integrity of the proceedings and incentivize witness tampering.

  • People v. Cantave, 21 N.Y.3d 374 (2013): Cross-Examination on Facts Underlying Conviction Pending Appeal

    People v. Cantave, 21 N.Y.3d 374 (2013)

    A defendant may not be cross-examined in another matter about the underlying facts of a prior conviction that is pending on direct appeal because doing so violates the defendant’s Fifth Amendment privilege against self-incrimination.

    Summary

    Cantave was convicted of assault. Prior to his testimony, the People were granted permission to cross-examine him regarding a rape conviction that was pending appeal. He did not testify and was convicted. His rape conviction was reversed and he was acquitted on retrial. The Court of Appeals addressed whether cross-examination regarding a conviction pending appeal violates the Fifth Amendment. The Court held that it does because any testimony elicited during cross-examination could be used against the defendant in a retrial, thus creating a risk of self-incrimination, and that the trial court’s ruling effectively prevented Cantave from testifying entirely.

    Facts

    Cantave was charged with assault stemming from a confrontation with Elbresius. Elbresius claimed Cantave was the aggressor, biting him. Cantave claimed Elbresius attacked him with a gun, which he reported to 911.

    Prior to trial, Cantave had been convicted of rape, which was pending appeal.

    At the assault trial, the People were permitted to cross-examine Cantave about the rape conviction and underlying facts.

    Cantave did not testify.

    Cantave’s rape conviction was reversed and he was acquitted on retrial.

    Procedural History

    Cantave was convicted of third-degree assault in the trial court.

    The Appellate Division affirmed, holding that the Sandoval issue was unpreserved and that the admission of the rape conviction was not an abuse of discretion.

    The Court of Appeals reversed the Appellate Division’s order and ordered a new trial.

    Issue(s)

    Whether the trial court violated Cantave’s Fifth Amendment privilege against self-incrimination by allowing the People to cross-examine him about the underlying facts of a rape conviction that was pending appeal.

    Holding

    Yes, because a defendant remains at risk of self-incrimination until he exhausts his right to appeal and any testimony elicited during cross-examination could later be used against him at a new trial.

    Court’s Reasoning

    The Court of Appeals reasoned that the Fifth Amendment privilege against self-incrimination must be liberally construed in favor of the accused, and a defendant who chooses to testify does not automatically waive the right against self-incrimination regarding pending criminal charges.

    The Court found that cross-examination about a conviction pending appeal is analogous to cross-examination about a pending charge, which the Court had previously prohibited in People v. Betts, 70 N.Y.2d 289 (1987). The Court in Betts held that allowing cross-examination about a pending charge “unduly compromises the defendant’s right to testify with respect to the case on trial, while simultaneously jeopardizing the correspondingly important right not to incriminate oneself as to the pending matter.” Id. at 295.

    The Court explained that until a defendant has exhausted his right to appeal a conviction, “he remained at risk of self-incrimination…If defendant testified in the instant case, any testimony elicited on cross-examination about the rape case could later be used against him at a new trial, which is ‘further incrimination to be feared.’”

    The Court noted that while the trial court presumably would have allowed Cantave to invoke his Fifth Amendment right in response to questions about the rape case, “ ‘taking the Fifth’ is highly prejudicial as to both the instant case and the conviction pending appeal” because “[i]t exerts an undeniable chilling effect upon a real ‘choice’ whether to testify in one’s own behalf.” Moreover, a defendant would have to invoke the Fifth Amendment as to both exculpatory and inculpatory questions to protect himself, otherwise he might waive the privilege.

    The Court found that the practical effect of the Sandoval ruling was to prevent Cantave’s testimony entirely.

    The Court also held that the trial court did not abuse its discretion by excluding the 911 call because the tenor and timing of the call did not qualify it as an excited utterance or a present sense impression.

  • People v. Havner, 20 N.Y.3d 387 (2013): Fifth Amendment Privilege and the Act of Production Doctrine

    People v. Havner, 20 N.Y.3d 387 (2013)

    The Fifth Amendment privilege against self-incrimination protects an individual from being compelled to produce evidence if the act of production itself is testimonial (revealing subjective knowledge) and incriminating, unless the government can demonstrate that the information would inevitably have been discovered through independent means.

    Summary

    Havner was ordered to surrender all firearms as part of a protective order. He surrendered an unlicensed handgun, leading to a criminal charge for illegal possession. The New York Court of Appeals held that Havner’s surrender was privileged under the Fifth Amendment because the act of producing the gun was both testimonial (admitting knowledge and possession) and incriminating (providing evidence of illegal possession). The court reasoned that the police were unaware of the specific handgun before Havner’s disclosure, and the act of production itself provided the incriminating evidence.

    Facts

    On April 8, 2005, Havner was charged with assault, burglary, and kidnapping related to a domestic violence incident. The Town Court issued a protective order requiring him to stay away from the victim and surrender all firearms.
    After posting bail, Havner surrendered his “long guns” to the police.
    Havner initially claimed his handgun was with his ex-wife, but she denied possessing it and said she last saw it at his home, possibly unlicensed.
    Havner later called police, stating he found the handgun and showed them its location in his home.
    The police confirmed the handgun was unlicensed.

    Procedural History

    Havner was charged with criminal possession of a weapon in the fourth degree in Jefferson Town Court.
    He moved to suppress the gun and his statements, arguing Fifth Amendment privilege.
    The Town Court granted the motion and dismissed the charges.
    County Court reversed, reinstating the charge, finding the order involved physical evidence, not compelled communication.
    The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether Havner’s surrender of the handgun, pursuant to a court order, was privileged under the Fifth Amendment right against self-incrimination, thus requiring suppression of the evidence in the weapon possession prosecution.

    Holding

    Yes, because the act of producing the unlicensed handgun was testimonial (revealing defendant’s subjective knowledge of its existence and location) and incriminating (providing proof of illegal possession), and the prosecution failed to prove inevitable discovery of the evidence through independent means.

    Court’s Reasoning

    The Fifth Amendment protects against compelled self-incrimination, requiring both compulsion and testimonial evidence. Here, compulsion existed because of the court order. The critical question was whether surrendering the handgun was “testimonial” or merely producing “real or physical evidence.”

    While physical evidence itself isn’t generally protected, the “act of production” can be if it communicates information. The Supreme Court has developed a two-part test:

    1. Is the act of production sufficiently testimonial? Evidence is testimonial if it reveals defendant’s subjective knowledge or thought processes. Surrender can concede existence or possession when unknown to authorities and not discoverable independently.

    2. Is the act of production incriminating? Does it pose a “realistic threat of incrimination”? Both elements must be met for Fifth Amendment protection.

    Here, the court found the surrender was testimonial because the police were unaware of the specific handgun before Havner’s disclosure. Havner’s statements were integral to complying with the order. The People hadn’t shown they were independently investigating the handgun or that the ex-wife would have alerted them without Havner’s initial statement.

    The surrender was also incriminating, as it provided proof of illegal possession, occurring during a felony prosecution without immunity.

    Because both elements were met, Havner’s Fifth Amendment rights were violated, requiring suppression and dismissal. The court emphasized that “the act was the exclusive source of evidence the People relied on in pursuing the prosecution for criminal possession of a weapon.”

    The court distinguished this case from regulatory regimes (like in *Baltimore City Dept. of Social Servs. v. Bouknight*) designed for non-law enforcement purposes, noting that the People did not argue that exception applied here. The court noted that any argument concerning the applicability of the regulatory regime exception was both unpreserved and waived.

  • People v. Slavin, 1 N.Y.3d 392 (2004): Admissibility of Tattoos as Evidence of Motive and the Fifth Amendment

    1 N.Y.3d 392 (2004)

    The Fifth Amendment’s protection against self-incrimination does not bar the admission of photographs of a defendant’s tattoos as evidence of motive, as tattoos are considered physical characteristics and their creation is not compelled by the state, even if they reflect the defendant’s thoughts.

    Summary

    Christopher Slavin was convicted of hate crimes after attacking two Mexican laborers. Over his objection, the prosecution introduced photographs of Slavin’s numerous offensive and racially charged tattoos to demonstrate his motive. The New York Court of Appeals affirmed the conviction, holding that the tattoos were physical characteristics, not compelled testimony, and therefore admissible despite Slavin’s Fifth Amendment claims. The court reasoned that the state did not compel Slavin to create the tattoos, and they were thus akin to pre-existing documents that can be used as evidence, even if incriminating.

    Facts

    Christopher Slavin lured two Mexican day laborers with a false promise of work and drove them to an isolated location. During the drive, he questioned their ethnicity. Upon arrival, Slavin and an accomplice brutally attacked the men. Slavin struck them with a metal post-hole digger, while the accomplice stabbed one of them. The victims escaped and were rescued by a passing motorist.

    Procedural History

    Slavin was indicted, and he moved to dismiss the indictment and preclude the use of photographs of his tattoos at trial, arguing Fourth, Fifth, and Sixth Amendment violations. The trial court denied the motion, and the People were permitted to take a second set of photographs. Slavin was convicted of attempted murder, assault, and aggravated harassment. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the trial court violated the defendant’s Fifth Amendment privilege against self-incrimination by admitting photographs of his tattoos, taken over his objection, as evidence of motive for committing a hate crime.

    Holding

    No, because the tattoos were physical characteristics, not compelled testimony, and the state did not force Slavin to create them; therefore, the admission of photographs of the tattoos did not violate his Fifth Amendment rights.

    Court’s Reasoning

    The Court of Appeals reasoned that the Fifth Amendment protects against compelled testimony, not against the use of physical characteristics as evidence. Relying on Schmerber v. California, the court stated that the privilege protects an accused from being compelled to testify against himself or provide the State with evidence of a testimonial or communicative nature. The court emphasized that while the tattoos may have reflected Slavin’s inner thoughts, he was not compelled to create them by the state.

    The court analogized the tattoos to pre-existing documents, noting that the Fifth Amendment does not protect the contents of such documents, even if incriminating, because their creation was not compelled. The court distinguished this case from situations where the act of producing evidence has testimonial aspects, such as admitting the existence or authenticity of documents, because the prosecution was already aware of the tattoos’ existence.

    The dissent argued that the tattoos were offered to prove Slavin’s state of mind and were therefore testimonial, thus violating his Fifth Amendment rights when he was compelled to reveal them. The dissent likened the forced removal of clothing to a strip search and argued that it constituted a greater invasion than a subpoena. The dissent also noted that the tattoos were covered by clothing, negating any claim that photographing them was part of routine arrest processing. Further, the dissent asserted that the second set of photographs taken pursuant to CPL 240.40 was unauthorized as the statute applies to non-testimonial evidence only.

    The majority countered that even if the second set of photographs was improperly authorized, there was no prejudice as the first set was admissible. Ultimately, the court held that Slavin was not compelled to be a witness against himself, as the tattoos were created voluntarily and the expert witness only testified as to the customary meaning of the images, without offering an opinion on Slavin’s thoughts during the attack.

  • People v. Miller, 91 N.Y.2d 372 (1998): Cross-Examination on Prior Guilty Pleas Before Sentencing

    People v. Miller, 91 N.Y.2d 372 (1998)

    A defendant who pleads guilty to a crime waives their Fifth Amendment rights regarding the facts admitted during the plea allocution, and may be cross-examined on those admissions in a subsequent trial, even if sentencing on the prior plea is pending, absent a credible claim that the plea is subject to vacatur.

    Summary

    Miller was convicted of robbery. Prior to trial, the court ruled that if Miller testified, the prosecution could cross-examine him regarding a prior robbery to which he had pleaded guilty but had not yet been sentenced. The cross-examination was limited to the facts Miller admitted during his guilty plea allocution. Miller appealed, arguing that because sentencing was pending on the prior robbery, cross-examination violated his right against self-incrimination. The New York Court of Appeals affirmed the conviction, holding that Miller waived his Fifth Amendment rights regarding the admitted facts when he pleaded guilty, and had not demonstrated a risk of incriminating himself beyond those admitted facts.

    Facts

    Miller robbed three children at a McDonald’s restaurant on August 11, 1996. He pleaded guilty to attempted robbery on November 20, 1996, admitting under oath to taking $70 from a child. Before sentencing, Miller was arrested for another robbery. At the trial for the second robbery, the People sought to cross-examine Miller about the McDonald’s robbery, for which he was still awaiting sentencing. The trial court permitted the cross-examination, limited to Miller’s admissions during his guilty plea allocution for the McDonald’s robbery. Miller did not testify and was convicted.

    Procedural History

    After being convicted of robbery, Miller appealed. The Appellate Division affirmed the conviction. A Judge of the Court of Appeals granted Miller leave to appeal to that court.

    Issue(s)

    Whether a trial court errs in permitting the prosecution to cross-examine a defendant about a prior crime to which the defendant pleaded guilty, but for which the defendant has not yet been sentenced, when the cross-examination is limited to the defendant’s admissions during the guilty plea allocution?

    Holding

    No, because the defendant waived his Fifth Amendment rights regarding the facts admitted during the plea allocution and did not demonstrate a credible risk of incriminating himself beyond those admitted facts.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. Betts, 70 N.Y.2d 289 (1987), where the Court held that a defendant who testifies does not waive their self-incrimination rights with respect to “pending” unrelated criminal charges. Here, Miller had already pleaded guilty to the prior crime, waiving his Fifth Amendment rights in connection with the facts he admitted during the plea allocution. The Court emphasized that Miller never suggested that his guilty plea was vulnerable or that there was any ground upon which it could be vacated. The Court also distinguished Mitchell v. United States, 526 U.S. 314 (1999), where the Supreme Court held that a defendant’s guilty plea did not waive her right to remain silent during sentencing proceedings where further testimony was expected. In this case, there was no basis for Miller to fear or expect a sentencing hearing at which proof would be taken or that he would be called upon to incriminate himself beyond what he admitted at the plea allocution. The Court stated, “By meticulously limiting the inquiry as it did, the trial court foreclosed any incriminating inquiry as to the McDonald’s crime, save what defendant himself said when he relinquished his Fifth Amendment rights during the plea colloquy.” The court concluded that Miller’s arguments regarding self-incrimination were theoretical and unavailing because the trial court only allowed questioning related to what Miller already admitted to under oath. The Court noted that it was not deciding whether People v. Spitaleri, 9 N.Y.2d 168 (1961), which barred the use of withdrawn guilty pleas, should be extended to admissions made in another trial.

  • People v. Siegel, 87 N.Y.2d 536 (1995): Witness’s Invocation of Fifth Amendment and Jury Consideration

    People v. Siegel, 87 N.Y.2d 536 (1995)

    A trial court has discretion to allow the jury to consider a defense witness’s invocation of the Fifth Amendment privilege against self-incrimination on cross-examination when evaluating the witness’s credibility, especially when the witness’s direct testimony favors the defendant and the invocation obstructs meaningful cross-examination.

    Summary

    Shannon Siegel was convicted of assault and related charges for his role in a violent attack. A key defense witness, Gourdin Heller, invoked his Fifth Amendment right against self-incrimination during cross-examination, after giving direct testimony favorable to Siegel. The trial court instructed the jury that they could consider this invocation when assessing Heller’s credibility. The New York Court of Appeals affirmed Siegel’s conviction, holding that the trial court acted within its discretion, as Heller’s refusal to answer questions on cross-examination hindered the prosecution’s ability to test the truth of his direct testimony. The Court emphasized the importance of balancing the defendant’s right to present witnesses with the prosecution’s right to cross-examine them effectively.

    Facts

    Shannon Siegel and others were involved in an altercation at a party with Jermaine Ewell. Siegel and his friends left and later returned to the boardwalk where Ewell was. Ewell was then attacked and severely injured. Siegel was charged with attempted murder, assault, and other crimes. At trial, Siegel testified he returned to the boardwalk only to find Gourdin Heller, a friend. Heller testified on Siegel’s behalf, corroborating Siegel’s claim that he returned to the boardwalk to find Heller, not to attack Ewell, and also indicating Ewell was the initial aggressor at the party.

    Procedural History

    Siegel was convicted on multiple counts, including assault, conspiracy, riot, and weapon possession. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the trial court improperly intimidated a defense witness (Heller) into invoking his Fifth Amendment privilege.
    2. Whether the trial court erred in requiring Heller to invoke the Fifth Amendment privilege in front of the jury.
    3. Whether the trial court erred in instructing the jury that it could consider Heller’s invocation of the Fifth Amendment privilege when assessing his credibility.

    Holding

    1. No, because the trial court appropriately advised Heller of the potential consequences of inconsistent testimony after inconsistencies emerged.
    2. No, because it was necessary for the jury to be aware of Heller’s invocation of the privilege to assess its bearing on his credibility.
    3. No, because under the circumstances, the trial court was correct to allow the jury to consider Heller’s invocation of the Fifth Amendment on the issue of his credibility, as the prosecution was effectively deprived of the right to cross-examine Heller regarding his direct testimony.

    Court’s Reasoning

    The Court of Appeals found no error in the trial court’s handling of Heller’s testimony. The Court noted that trial courts have the authority to advise witnesses of the potential legal consequences of self-incriminating testimony and their Fifth Amendment privilege, citing People v. Lee and People v. Shapiro. However, this authority is limited, as a court cannot threaten a defense witness or actively encourage them not to testify, citing Webb v. Texas and United States v. Arthur.

    The Court reasoned that the trial court’s actions did not deter Heller from testifying initially. The intervention occurred only after inconsistencies between Heller’s trial and Grand Jury testimony emerged. The court allowed Heller to seek counsel before continuing.

    Regarding the jury instruction, the Court emphasized that striking Heller’s testimony entirely would have been a more drastic remedy, and the trial court has wide discretion in fashioning a corrective response, citing People v. Chin. The court referred to United States v. Cardillo, which outlined graduated levels of remedial action depending on the nature of the questions the witness refused to answer. McCormick’s treatise on Evidence supports this analysis, advocating for less severe alternatives when a defense witness invokes the privilege, considering the defendant’s Sixth Amendment rights.

    The Court concluded that the trial court’s instruction, allowing the jury to consider the invocation of the privilege on credibility, was a proper balance, as the jury should be aware that Heller’s direct testimony was never fully tested by cross-examination. This approach aligns with cases such as Delaware v. Fensterer and Government of Virgin Is. v. Riley, which hold that obstruction of cross-examination is a factor for the jury to weigh on credibility. “[T]he trial judge can properly consider measures short of striking the witness’s direct testimony, such as having the witness invoke the privilege before the jury or instructing the jury to consider the testimony in light of the defendant’s reduced ability to cross-examine.”

  • People v. Vargas, 86 N.Y.2d 215 (1995): Improperly Drawing Inferences from Witness’s Fifth Amendment Invocation

    People v. Vargas, 86 N.Y.2d 215 (1995)

    It is reversible error for a prosecutor to call a witness knowing they will invoke the Fifth Amendment and then argue that the witness’s silence implies the defendant’s guilt.

    Summary

    Vargas was convicted of murder based on circumstantial evidence. A key witness, Arlequín, invoked his Fifth Amendment right against self-incrimination when questioned about his involvement and knowledge of the crime. The prosecutor, despite knowing Arlequín would plead the Fifth, repeatedly questioned him on matters he refused to answer and then argued in summation that Arlequín’s silence implied Vargas’s guilt. The New York Court of Appeals reversed Vargas’s conviction, holding that the prosecutor’s actions prejudiced Vargas’s right to a fair trial and that a curative instruction was insufficient to mitigate the damage.

    Facts

    Lourdes Caban was murdered in her car. Police investigation led to Anthony Arlequín, Vargas’s cousin, who initially implicated Vargas in a statement to the police. At trial, Arlequín, after initially stating his prior statement was a lie, was called as a witness by the prosecution. He invoked his Fifth Amendment right in response to most questions about his involvement and Vargas’s role in the murder. The prosecutor continued to question him on these matters in front of the jury, despite knowing he would assert his Fifth Amendment privilege.

    Procedural History

    Vargas was convicted of second-degree murder and criminal possession of a weapon. He appealed, arguing the prosecutor improperly used Arlequín’s Fifth Amendment invocation to prejudice the jury against him. The Appellate Division affirmed the conviction, finding the error harmless due to the trial court’s limiting instruction. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s order.

    Issue(s)

    1. Whether the prosecutor committed reversible error by calling a witness who she knew would invoke his Fifth Amendment privilege and then using that invocation to argue the defendant’s guilt.

    Holding

    1. Yes, because the prosecutor deliberately elicited the witness’s invocation of the Fifth Amendment and then used it to build an impermissible inference of the defendant’s guilt, thereby denying the defendant a fair trial.

    Court’s Reasoning

    The court relied on the principle that the Fifth Amendment protects individuals from being compelled to testify against themselves. The court stated, “When the People question a witness knowing the witness will respond by invoking the Fifth Amendment, and then compound the prejudice to defendant by expressing in closing argument that the witness’s claim of the testimonial privilege was evidence of defendant’s guilt, defendant is deprived of a fair trial.” It also cited Namet v. United States, establishing the framework for evaluating challenges related to a witness pleading the Fifth Amendment at trial. Key factors include the prosecutor’s conduct, the significance of the questions, whether inferences were drawn in closing arguments, the witness’s relationship to the defendant, and jury instructions.

    The court found that the prosecutor received clear indication of what the witness would not discuss and the court directed the prosecutor not to question him on those matters. The court found that the prosecutor’s repeated questioning and summation arguments were designed to create the inference that Arlequín was protecting Vargas. The court noted the absence of direct evidence linking Vargas to the murder, making the unfavorable inference irresistible. The limiting instruction was insufficient to mitigate the prejudice. The court concluded, “Defendant was irreparably prejudiced when the prosecutor purposely called a witness knowing full well that the witness would invoke the Fifth Amendment and then seized on the witness’s silence in summation to bolster the People’s case against defendant.” The People cannot justify the approach employed in this case on the ground that defendant might have been entitled to a missing witness charge if Arlequín did not testify.

  • People v. Macana, 84 N.Y.2d 173 (1994): Missing Witness Charge When Witness May Invoke Fifth Amendment

    84 N.Y.2d 173 (1994)

    A missing witness charge regarding a witness who may invoke their Fifth Amendment right against self-incrimination is inappropriate unless the defendant verifies that the witness’s testimony would be self-incriminating and that they would likely invoke the privilege.

    Summary

    Macana was convicted of criminal possession of a weapon. He argued that he possessed the weapon temporarily and lawfully, having taken it from his suicidal, blind father. The prosecution requested a missing witness charge because Macana didn’t call his father to testify. The trial court granted the charge. Macana appealed, arguing that a missing witness charge is inappropriate when the witness might invoke the Fifth Amendment. The Court of Appeals affirmed the conviction, holding that because Macana did not substantiate that his father would likely invoke his Fifth Amendment privilege, the missing witness charge was appropriate.

    Facts

    Police responded to a report of shots fired near Macana’s residence. They observed bullet holes in a window screen and garage door and found a spent round near the house. Macana consented to a search. Police observed Macana reaching toward a pile of clothes, and upon investigation, found a .45 caliber pistol. Macana claimed the gun belonged to his blind, depressed father, who had expressed suicidal intentions. Macana testified he took the gun from his father after hearing gunshots and hid it, but his father was not called to testify.

    Procedural History

    Macana was convicted in Supreme Court, Queens County. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a missing witness charge is appropriate when the uncalled witness is the defendant’s father, who could potentially incriminate himself if he testified, and the defendant has not provided verification that his father would invoke his Fifth Amendment right.

    Holding

    Yes, because where the defendant is the only source of proof that the uncalled witness would give favorable, self-incriminating testimony, some additional, non-prejudicial substantiation is needed to avoid a missing witness charge.

    Court’s Reasoning

    The Court of Appeals relied on precedent establishing that once a defendant presents evidence, the standards for a missing witness charge apply. The party seeking the charge must show the opposing party failed to call a knowledgeable witness whose testimony would favor that party. The burden then shifts to the opposing party to explain the witness’s absence. If the uncalled witness were a co-defendant or accomplice likely to invoke the Fifth Amendment, a missing witness charge is inappropriate because the witness’s invocation casts doubt on whether they would testify favorably, and the witness is deemed unavailable. “[T]he witness should at least have been summoned and asked, for he may waive the privilege.”

    Where the defendant is the only source of proof the uncalled witness exists and that the witness’s testimony would be self-incriminating, further verification is required. Without it, a defendant could easily fabricate a story shifting blame. Requiring non-prejudicial substantiation balances the People’s interest in deterring perjury and the defendant’s interest in avoiding an unfavorable charge when a witness would likely refuse to testify. The court cited People v. Rodriguez, noting there was no “assertion by or on behalf of the witness that he would invoke the Fifth Amendment.” The Court also found no error in rejecting the defendant’s request for a missing witness charge for the officer who retrieved the gun, as his testimony would have been cumulative.

    The dissent argued that the People did not meet their initial burden of proving that the missing witness would naturally be expected to testify favorably to the defendant. Because the defendant’s father would undeniably have had to place himself in criminal jeopardy to materially support his son’s defense, an adverse inference charge was improper. “[W]here `the most likely result of calling * * * a witness would have been his refusal to testify on self-incrimination grounds’, the inference that the witness would have given testimony favorable to the party who otherwise would have naturally called him or her is negated.”