New York Law Review

Tag: Fifth Amendment

  • Matter of Vanderbilt (Rosner-Hickey), 57 N.Y.2d 66 (1982): Protecting Marital & Attorney-Client Privileges

    57 N.Y.2d 66 (1982)

    Confidential communications between spouses during marriage are privileged, even if made in contemplation of suicide; material protected by the Fifth Amendment and attorney-client privilege in a client’s hands retains that protection when transferred to an attorney for legal advice.

    Summary

    This case concerns a grand jury investigation into the attempted murder of Clara Vanderbilt. Dr. Rosen, a suspect, created two cassette tapes: one for his wife (Tape No. 1) and another found at his office (Tape No. 2). Rosen’s attorney, Rosner, refused to produce the tapes, asserting marital privilege and attorney-client/Fifth Amendment privileges. The Court of Appeals held Tape No. 1 was protected by marital privilege, barring its disclosure or examination for alterations. Tape No. 2 was protected by a combination of the attorney-client and Fifth Amendment privileges, but only if Rosen’s wife was acting as his agent when she transferred it to his attorney. The Court emphasized that transferring evidence to an attorney doesn’t automatically shield it if it wouldn’t have been protected in the client’s hands.

    Facts

    Clara Vanderbilt was found unconscious near Dr. Richard Rosen’s office after telling an acquaintance she was meeting him there.

    Rosen, aware he was a suspect, created a tape for his wife (Tape No. 1) and left another at his hospital office (Tape No. 2). He then attempted suicide.

    Rosen’s wife found Tape No. 1 and, on advice from a friend who was an attorney (Olick), did not listen to it and instead gave it to Olick.

    Tape No. 2 was retrieved from Rosen’s office and given to his wife.

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    Rosen hired attorney Rosner, and Rosen’s wife gave him both tapes.

    During the investigation, Rosen’s wife revealed the existence of Tape No. 1, but Rosner refused to produce either tape, citing privilege.

    Procedural History

    The Bronx County Grand Jury subpoenaed the tapes.

    Rosner refused to comply with the subpoena and an ex parte court order.

    The trial court found Rosner in contempt but allowed time to surrender the tapes under seal.

    The Appellate Division reversed the trial court, finding Tape No. 1 protected by the marital privilege but ordering it tested for alterations. They ruled no privilege applied to Tape No. 2 and ordered its disclosure.

    The New York Court of Appeals heard the appeal.

    Issue(s)

    Whether Tape No. 1, a message from a husband to his wife prepared in contemplation of suicide, is protected by the marital privilege, and whether that protection extends to prevent examination for tampering.

    Whether Tape No. 2 is protected by a combination of the attorney-client privilege and the Fifth Amendment privilege against self-incrimination.

    Holding

    Yes, because the tape was a confidential communication induced by the marital relationship, the marital privilege protects both its contents and from examination for deletions.

    Yes, because an attorney may rely on the attorney-client privilege to prevent discovery of materials that would not have been discoverable if in the client’s hands but only if the client gave the tape to the attorney and if the wife was acting as the husband’s agent when she transferred the tape to his attorney.

    Court’s Reasoning

    The court reasoned that the marital privilege protects confidential communications made because of the marital relationship. A suicide note to a spouse falls under this protection as it may be an attempt to preserve affection and explain the drastic act.

    The privilege remains intact even if third parties handle the communication, as long as the substance of the communication is not revealed. Here, only the existence of the tape was revealed, not its contents.

    Once a communication is determined to be privileged, it is irrelevant whether it has been altered; deletions are as much a part of the communication’s substance as the statements made. The court stated, “What is not said and whether deletions have been made are as much a part of a communication’s ‘substance’ as are the statements actually made.”

    Regarding Tape No. 2, the court acknowledged that Rosner could not directly assert Dr. Rosen’s Fifth Amendment rights. However, an attorney may rely on the attorney-client privilege to prevent discovery of materials that would not have been discoverable if in the client’s hands.

    The attorney-client privilege extends to confidential communications made to obtain informed legal advice. Here, delivering the tape was necessary for Rosner to render legal advice.

    The court emphasized that the confidentiality of the tape’s message was maintained because none of the individuals who handled the tape listened to it. The court noted, “When Rosner finally received the tape, he received it with its contents undisclosed.”

    To assert the Fifth Amendment privilege, the evidence must be testimonial, and the act of producing it must also have a testimonial quality. A tape cassette is testimonial because it is an aural record of communication.

    The court noted that producing the tape would authenticate it, vouching for its accuracy. Therefore, the Fifth Amendment protection is available, but only if Dr. Rosen gave the tape to Rosner and Mrs. Rosen was acting as his agent.

    Judge Jasen dissented in part, arguing that the facts surrounding Tape No. 2 did not guarantee confidentiality and that Rosner did not establish that the tape was given for legal advice. Judge Jasen also argued that the tape should not be assumed to be self-incriminatory or testimonial.

  • People v. Miller, 54 N.Y.2d 692 (1981): Admissibility of Confession After Invocation of Right to Silence

    54 N.Y.2d 692 (1981)

    A suspect’s invocation of the right to remain silent must be scrupulously honored; however, a confession is admissible if police conduct did not induce or actively aid a third party’s urging of the suspect to speak after the right was invoked.

    Summary

    The New York Court of Appeals affirmed the lower court’s decision, holding that the defendant’s confession was admissible. The defendant argued that his confession should have been suppressed because his brother-in-law, a police officer, urged him to speak with authorities after he had invoked his right to remain silent. The Court of Appeals found that the police did not induce or actively aid the brother-in-law’s conduct, and therefore, the defendant’s right to remain silent was “scrupulously honored.” The court also held that cross-examination of the defendant concerning uncharged crimes was permissible because the prosecutor had a good faith basis for the inquiry.

    Facts

    The defendant, Miller, was arrested and invoked his right to remain silent. Subsequently, Miller’s brother-in-law, Turner, who was also a New York City police officer but in a different precinct, urged Miller to speak with the authorities. Miller then confessed. At trial, the prosecution cross-examined Miller about uncharged crimes based on information provided by the victim’s brother.

    Procedural History

    The trial court admitted Miller’s confession and permitted cross-examination about uncharged crimes. Miller was convicted. The Appellate Division affirmed the conviction. Miller appealed to the New York Court of Appeals, arguing that his confession should have been suppressed and that the cross-examination was improper. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the defendant’s confession should have been suppressed because his brother-in-law urged him to speak with the authorities after he had invoked his right to remain silent, thus violating his Fifth Amendment rights.

    2. Whether the trial court erred in permitting cross-examination of the defendant concerning uncharged crimes based on information provided by the victim’s brother.

    Holding

    1. No, because the police did not induce or actively aid Turner’s conduct; thus, the defendant’s invocation of his right to remain silent was “scrupulously honored.”

    2. No, because questioning about uncharged crimes is permissible in the exercise of the court’s discretion so long as there is a good faith basis in fact for the inquiry.

    Court’s Reasoning

    The Court of Appeals reasoned that the affirmed findings indicated the police did not induce or actively aid Turner in urging Miller to speak. The court cited Michigan v. Mosley, stating that Miller’s invocation of his right to remain silent was “scrupulously honored.” The court emphasized that the key consideration is whether the police actions undermined the defendant’s decision to remain silent. Here, the brother-in-law acted independently. As for the cross-examination about uncharged crimes, the court referenced People v. Sorge, noting that such questioning is permissible if there is a good faith basis in fact for the inquiry. The trial court was satisfied with the foundation provided for the prosecutor’s questions, and the Court of Appeals found no abuse of discretion. The court found no reason to overturn the trial court’s judgment.

  • People v. Thomas, 51 N.Y.2d 466 (1980): When a Witness Invokes Fifth Amendment Privilege

    People v. Thomas, 51 N.Y.2d 466 (1980)

    A trial court has discretion to prevent a witness from invoking the Fifth Amendment privilege against self-incrimination in front of the jury and may be required to give a neutral instruction explaining a witness’s absence if the jury is aware the witness might have information helpful to the defendant.

    Summary

    Thomas was convicted of robbery, weapon possession, and stolen property possession. At trial, two potential defense witnesses, Whitlock and Cook, indicated they would invoke their Fifth Amendment rights. The trial court refused to allow them to invoke the privilege in front of the jury and denied a request to instruct the jury about Whitlock’s absence. The Court of Appeals affirmed the conviction, holding that the trial court had discretion to prevent the witnesses from invoking their Fifth Amendment privilege in front of the jury, but also stated that a neutral instruction explaining a witness’s absence may be required if the jury is aware the witness might have information helpful to the defense. The Court reasoned that allowing the jury to hear the invocation of the Fifth Amendment could lead to unwarranted speculation.

    Facts

    Joseph Lataillade, a service station attendant, was robbed at gunpoint by a driver in a stolen car. Lataillade handed over 45-50 single dollar bills.

    Police officers spotted a matching vehicle at another service station and apprehended Thomas after a chase. Thomas had 49 single dollar bills on his person.

    Thomas claimed he borrowed the car from Alan Whitlock and that Whitlock committed the robbery.

    Whitlock and David Cook, potential defense witnesses, indicated they would invoke their Fifth Amendment privilege against self-incrimination.

    Procedural History

    The trial court convicted Thomas on all three counts.

    The Appellate Division affirmed the conviction.

    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the defendant has an absolute right to call a witness to the stand solely to have them invoke their Fifth Amendment privilege in front of the jury.

    2. Whether the trial court erred in denying the defendant’s request for an instruction advising the jury that a witness had elected to invoke his constitutional privilege.

    Holding

    1. No, because a witness’s refusal to testify on constitutional grounds does not, in and of itself, have any real probative significance, although it may have a disproportionate impact upon the minds of the jurors and may tend to create the impression that the witness is guilty of a particular crime.

    2. No, because the invitation to the jury to engage in unwarranted speculation exists whether the jury is informed of a witness’ refusal to testify by the Trial Judge or by the witness himself.

    Court’s Reasoning

    The Court held that a trial court has discretion to prevent a witness from invoking the Fifth Amendment in front of the jury. The Court reasoned that the witness’s silence has no probative value and could lead to unwarranted speculation by the jury. The Court stated, “The rule is founded on the sound premise that a witness’ refusal to testify on constitutional grounds does not, in and of itself, have any real probative significance, although it may have a disproportionate impact upon the minds of the jurors and may tend to create the impression that the witness is guilty of a particular crime”.

    However, the Court also noted that in some cases, a neutral instruction explaining a witness’s absence may be necessary to prevent the jury from drawing an improper inference against the defendant. The Court suggested the following instruction: “There has been testimony in this case about [a witness] named [John Doe]. As a result of a hearing held outside the presence of the jury, the court has determined that [Mr. Doe] is not available to be called as a witness by either side in this case. The jury may not draw any inference from the fact that [Mr. Doe] did not appear as a witness”.

    The Court found that the defendant was not entitled to such an instruction in this case because he did not request a neutral instruction, but instead argued that he had an absolute right to have the jury informed of the witness’s decision to invoke the Fifth Amendment.

  • Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31 (1980): Permissible Inference from Invoking Fifth Amendment in Civil Cases

    Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31 (1980)

    In a civil case, the jury may draw an adverse inference from a party’s invocation of the Fifth Amendment privilege against self-incrimination.

    Summary

    Marine Midland Bank sued John E. Russo Produce Co. and Canestraro Produce, Inc., along with their officers, alleging a check-kiting scheme. During the trial, John and Rita Russo invoked their Fifth Amendment rights when questioned about the checks. The trial court instructed the jury that no adverse inference could be drawn from this. The jury found the defendants not liable, but also fixed the bank’s loss at $309,800. The Appellate Division reversed in part, finding the Fifth Amendment charge erroneous. The Court of Appeals held that in civil cases, an adverse inference can be drawn from a party’s invocation of the Fifth Amendment, and that the error was not harmless, warranting a new trial against Canestraro.

    Facts

    John E. Russo Produce Co., Inc. (Produce) and Canestraro Produce, Inc. (Canestraro) were closely related produce businesses. John and Rita Russo owned Produce; their sons, Joseph and Andrew Russo, controlled Canestraro. They shared office space and storage, and Canestraro was a supplier to Produce. Rita was Canestraro’s part-time bookkeeper and a signatory on its bank account with Marine Midland Bank. Produce allegedly engaged in check kiting, covering overdrafts at Marine Midland with checks from Citibank, where the Citibank account was then covered by checks drawn on Marine Midland. Citibank eventually dishonored Produce’s checks, leaving Marine Midland with a $309,800 deficit.

    Procedural History

    Marine Midland sued the defendants for fraud and conversion. During the trial, John and Rita Russo invoked their Fifth Amendment privilege against self-incrimination. The trial court instructed the jury that no adverse inference could be drawn from the invocation. The jury found no liability but determined the bank’s loss at $309,800. The Appellate Division reversed the judgment in favor of John, Rita, and Produce and ordered a new trial, holding the Fifth Amendment charge was erroneous, but affirmed as to Canestraro and Joseph. Marine Midland appealed the affirmance as to Canestraro.

    Issue(s)

    1. Whether, in a civil case, an adverse inference may be drawn from a party’s invocation of the Fifth Amendment privilege against self-incrimination.

    2. Whether the trial court’s erroneous charge regarding the Fifth Amendment was harmless error with respect to Canestraro.

    Holding

    1. Yes, because the policy of the Fifth Amendment, designed as a safeguard in criminal prosecutions, should not be extended to civil cases where the parties are on equal footing.

    2. No, because Canestraro’s exculpation might have been based on the jury’s conclusion that Rita was unaware of the deficit balances, a determination they might not have reached had there been a correct charge on the Fifth Amendment.

    Court’s Reasoning

    The Court of Appeals reasoned that the Fifth Amendment privilege, designed to protect individuals from state oppression in criminal investigations, should not shield them in civil cases where parties are on equal footing. The court likened the situation to a party’s failure to produce a material witness under their control, which allows the jury to assess the strength of the opposing party’s evidence. Therefore, the trial court’s instruction that no adverse inference could be drawn was erroneous.

    Regarding Canestraro, the court held that the erroneous charge was not harmless. The jury might have concluded that Rita Russo, Canestraro’s bookkeeper, was unaware of the deficit balances in the accounts, which would have exculpated Canestraro. A correct charge on the Fifth Amendment might have led the jury to a different conclusion. The court emphasized that “an error is only deemed harmless when there is no view of the evidence under which appellant could have prevailed.”

    The court also addressed the imputation of knowledge from agent (Rita) to principal (Canestraro). While knowledge is generally imputed, this is not the case when the agent has an interest adverse to the principal. The court found that whether Rita’s interests were adverse to Canestraro was a factual issue for the jury. The court noted Canestraro’s corporate liability could also arise from an unjust enrichment theory. “A principal that accepts the benefits of its agent’s misdeeds is estopped to deny knowledge of the facts of which the agent was aware.”

    Finally, the court affirmed the Appellate Division’s ruling regarding Joseph Russo’s individual liability. Corporate officers are not liable for fraud unless they personally participate in the misrepresentation or have actual knowledge of it. The jury found that Joseph lacked such knowledge, and this finding was supported by the evidence. The court noted, “Since the theory that Joseph actually knew of the misrepresentation was necessarily encompassed by the case as presented to the first jury…the answers in his favor must be deemed a finding that he had no such knowledge.” The court also held that any error related to the Fifth Amendment instruction regarding John and Rita would not have affected the determination of Joseph’s knowledge.

  • People v. Von Werne, 41 N.Y.2d 584 (1977): Defendant’s Silence Cannot Be Used Against Him

    People v. Von Werne, 41 N.Y.2d 584 (1977)

    A defendant’s exercise of their constitutional right to remain silent cannot be used against them at trial to infer guilt.

    Summary

    Herbert Von Werne was convicted of possessing stolen property and related charges. The prosecution presented evidence that Von Werne possessed two stolen Cadillacs with altered VIN plates. At trial, a police officer testified that Von Werne invoked his right to remain silent during questioning. The trial court also gave an improper jury instruction regarding circumstantial evidence and the defendant’s knowledge. The New York Court of Appeals reversed the conviction, holding that the officer’s testimony about Von Werne’s silence was prejudicial error and that the jury instruction on circumstantial evidence was also flawed. This case emphasizes the importance of protecting a defendant’s Fifth Amendment rights and properly instructing the jury on the use of circumstantial evidence.

    Facts

    Officer Gleason, trained in detecting stolen cars, found a Cadillac with a VIN plate attached with non-standard rivets. The license plate did not match the car, and the registered owner’s address was incorrect. A hidden VIN plate matched a stolen vehicle reported by Herman Sundelson. When Von Werne claimed ownership, Gleason interviewed him after administering Miranda warnings. Von Werne stated he bought the car without an engine or transmission, and he had worked on it. When asked who helped install the engine and transmission, Von Werne stated, “I don’t wish to answer any more questions without my lawyer present.” Gleason later found another Cadillac near Von Werne’s residence with similar VIN plate irregularities. This car was also determined to be stolen.

    Procedural History

    Von Werne was convicted at trial on multiple counts related to possessing stolen property. The Appellate Division affirmed the conviction. Von Werne appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court erred in allowing the police officer to testify that the defendant invoked his right to remain silent during questioning.

    2. Whether the trial court improperly instructed the jury on the use of circumstantial evidence to prove the defendant’s knowledge of the illegal nature of the property.

    Holding

    1. Yes, because a defendant’s exercise of their constitutional right to remain silent cannot be used against them.

    2. Yes, because the court’s instruction regarding the statutory presumption of knowledge was inapplicable, and the jury should have been properly instructed on the use of circumstantial evidence to prove knowledge.

    Court’s Reasoning

    The Court of Appeals held that allowing the officer to testify about Von Werne’s silence was a violation of his Fifth Amendment rights. The court emphasized that the only purpose of such testimony is to allow the jury to infer consciousness of guilt, which is impermissible. As the court stated, “The point of the cases is that a defendant’s exercise of his constitutional right may not be used against him by the prosecution. (Griffin v California, 380 US 609, 615.)” The court found that this error was not harmless, especially considering the less-than-overwhelming evidence of Von Werne’s knowledge. Furthermore, the court found that the trial court erred in its jury instructions regarding circumstantial evidence and the element of knowledge. The court stated “Knowledge, of course, may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred”. The trial court improperly applied a statutory presumption of knowledge applicable to those “in the business of buying, selling or otherwise dealing in property,” as there was no evidence Von Werne engaged in such business. The jury should have been instructed on how to properly evaluate circumstantial evidence to determine if the prosecution had proven beyond a reasonable doubt that Von Werne knew the property was stolen. Because of these errors, the Court of Appeals reversed the conviction and ordered a new trial.

  • People v. Dackman, 42 N.Y.2d 1067 (1977): Preserving Objections Regarding Witness Privilege Against Self-Incrimination

    People v. Dackman, 42 N.Y.2d 1067 (1977)

    A defendant’s failure to object to a trial court’s recognition of a witness’s claim of privilege against self-incrimination forfeits the right to appellate review of that specific error.

    Summary

    Dackman was convicted based on a drugstore robbery in which a participant, who had already pleaded guilty, was subpoenaed by the defense. This witness invoked his Fifth Amendment privilege against self-incrimination and refused to testify. The trial court did not allow the defendant to call the witness to the stand. The defendant did not object to the court’s decision regarding the witness’s privilege. On appeal, the defendant argued the witness should not have been allowed to invoke the privilege because he had already pleaded guilty. The Court of Appeals affirmed the conviction, holding that the defendant’s failure to object at trial precluded appellate review of the claim that the witness’s Fifth Amendment privilege was improperly recognized.

    Facts

    The defendant was charged with a crime based on his participation in a drugstore robbery.
    A participant in the robbery pleaded guilty.
    The defendant subpoenaed this participant as a witness, hoping for exculpatory testimony.
    The witness, when examined outside the presence of the jury, invoked his Fifth Amendment privilege against self-incrimination and refused to testify.
    The trial court ruled that the defendant could not call the witness to the stand, and defense counsel did not object.
    The trial court then denied the defense’s request to inform the jury about the witness’s guilty plea and his reason for not appearing, a decision the defendant did not appeal.

    Procedural History

    The trial court convicted the defendant.
    The Appellate Division affirmed the conviction.
    The case was appealed to the New York Court of Appeals.

    Issue(s)

    Whether a defendant, by failing to object to the trial court’s recognition of a witness’s claim of privilege against self-incrimination, preserves the alleged error for appellate review.

    Holding

    No, because the defendant failed to object to the trial court’s recognition of the claim of privilege or otherwise raise any question as to the witness’s right to assert such privilege, the error, if any, was not preserved for appellate review.

    Court’s Reasoning

    The Court of Appeals emphasized that the defendant did not object to the trial court’s recognition of the witness’s Fifth Amendment claim. Because of this failure to object, the Court held that the issue of whether the witness was improperly allowed to invoke the privilege was not preserved for appellate review.

    The Court acknowledged a potentially significant issue concerning the prosecution’s failure to grant immunity to the witness, which could have deprived the defendant of exculpatory testimony and potentially violated due process and the right to a fair trial (citing People v. Sapia, 41 NY2d 160). However, the Court clarified that this issue was neither preserved nor presented on appeal.

    The Court stated, “In view of the failure of defendant to object to the trial court’s recognition of the claim of privilege or otherwise then to raise any question as to the witness’ right to assert such privilege, the error, if any, was not preserved for appellate review.”

  • People v. Adams, 43 N.Y.2d 102 (1977): Prosecution’s Duty to Grant Immunity to Informant Witnesses

    People v. Adams, 43 N.Y.2d 102 (1977)

    The prosecution is not generally obligated to grant immunity to a potential defense witness, even if that witness is an informant who could offer exculpatory testimony, unless the informant was an active participant in the crime as an agent of law enforcement.

    Summary

    Adams was convicted of drug charges. At trial, he argued entrapment and sought to call Fodderell, a confidential informant, as a witness. Fodderell, already serving a federal sentence, invoked his Fifth Amendment right against self-incrimination. The trial court urged the prosecution to grant Fodderell immunity, but they refused. Adams argued this refusal violated his rights. The New York Court of Appeals affirmed the conviction, holding that the prosecution wasn’t obligated to grant immunity because Fodderell was merely a facilitator and observer, not an active participant in the crime. The Court distinguished situations where the informant acts as an agent of law enforcement.

    Facts

    Earl Fodderell, a narcotics distributor, became a confidential informant after pleading guilty to federal charges.

    Fodderell provided information leading to the investigation of Adams and participated in planning controlled drug purchases from Adams.

    Fodderell introduced an undercover officer to Gardner, who acted as an intermediary in the drug sales, and helped arrange meetings.

    Fodderell was present at one sale where money was exchanged and details of a later transfer from Adams were arranged and may have been an eyewitness to the sale of heroin by Adams to the undercover officer.

    Procedural History

    Adams was convicted after a jury trial.

    He appealed, arguing that the prosecution’s failure to grant immunity to Fodderell was prejudicial error.

    The Appellate Division affirmed the conviction.

    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the prosecution’s failure to grant immunity to a potential defense witness who invokes their Fifth Amendment right against self-incrimination constitutes a denial of due process or the right to a fair trial when that witness is a confidential informant who could offer exculpatory testimony.

    Holding

    No, because in the circumstances of this case, the confidential informant was not an active participant in the criminal transaction, and the prosecution, therefore, had no obligation to grant immunity to make his testimony available to the defendant.

    Court’s Reasoning

    The Court reasoned that the Sixth Amendment right to compulsory process is not absolute and does not compel testimony over a valid claim of privilege, such as the Fifth Amendment right against self-incrimination. The court noted that the key consideration is whether the prosecution suppressed evidence favorable to the accused, violating due process under Brady v. Maryland. However, there was no suppression here because the defendant knew the informant’s identity and had the opportunity to interview him.

    The Court distinguished this case from situations where the informant is an active participant in the criminal transaction as an agent of law enforcement. In such cases, the prosecution might be required to grant immunity or face dismissal of the prosecution to ensure a fair trial. However, because Fodderell was merely a facilitator and observer, not an active participant, the prosecution was not obligated to grant immunity. The Court emphasized Fodderell’s limited involvement: “In the present instance, at most Fodderell was a facilitator and an observer… In short, his was the now familiar role of the informer; he was not an actor in the criminal transactions.”

    The court also rejected the argument that the defendant was prejudiced by not being able to call Fodderell to the stand and force him to invoke his Fifth Amendment right in front of the jury.

  • People v. Schneider, 36 N.Y.2d 708 (1975): Prosecution Cannot Call Witness Solely to Force Invocation of Privilege

    36 N.Y.2d 708 (1975)

    A prosecutor engages in misconduct by calling a witness who they know will invoke their Fifth Amendment privilege against self-incrimination, if the sole purpose is to create a negative inference against the defendant.

    Summary

    Alvin Schneider, a police officer, was convicted of statutory rape. A key element of the prosecution’s case involved the testimony of Maggio, a fellow officer who had previously corroborated Schneider’s version of events but later recanted and indicated he would assert his Fifth Amendment privilege. The prosecution called Maggio as a witness, knowing he would invoke his privilege. The Court of Appeals reversed Schneider’s conviction, holding that the prosecution engaged in misconduct by calling Maggio solely to allow the jury to draw a negative inference from his silence.

    Facts

    Alvin Schneider, a New York City police officer, was accused of statutory rape of a 15-year-old girl. Schneider claimed he was merely helping the girl, who was having trouble at home. He testified that he took her to a motel but left shortly thereafter. To support his story, Schneider claimed that Maggio, a fellow police officer, was with him. Maggio initially corroborated Schneider’s story during a police disciplinary investigation. However, Maggio later recanted and faced his own disciplinary proceedings. Before trial, the prosecution knew Maggio would assert his Fifth Amendment privilege if called to testify.

    Procedural History

    Schneider was convicted after a jury trial. He appealed. The Appellate Division reversed the conviction. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the prosecution committed prejudicial misconduct by calling a witness, Maggio, knowing that he would invoke his Fifth Amendment privilege against self-incrimination, when the primary purpose was to allow the jury to draw an adverse inference against the defendant.

    Holding

    Yes, because calling a witness solely to have them invoke their Fifth Amendment privilege, thereby inviting the jury to draw adverse inferences against the defendant, constitutes prosecutorial misconduct and warrants a new trial.

    Court’s Reasoning

    The Court of Appeals agreed with the dissenting justices at the Appellate Division who believed that the prosecution’s use of Maggio’s testimony was improper. The dissent argued that the prosecution knew Maggio would invoke his Fifth Amendment privilege. The court found that calling Maggio served no legitimate purpose other than to prejudice the jury against Schneider by implying that Maggio’s silence was an admission of Schneider’s guilt. The court emphasized that the prosecution cannot make a “conscious and flagrant attempt to build [a] case out of inferences arising from [Maggio’s] use of the testimonial privilege.” The court contrasted the situation with cases where the witness’s testimony served some other legitimate purpose, such as providing direct evidence or being subject to cross-examination on other matters. In this case, Maggio’s invocation of the privilege denied Schneider a fair opportunity to rebut the negative inference created by his silence. The dissent in the Court of Appeals argued that Schneider injected Maggio into the case and opened the door to Maggio’s testimony; therefore, no error occurred. The majority rejected this argument and reversed the conviction, ordering a new trial.

  • People v. Avant, 33 N.Y.2d 265 (1973): Unconstitutional Coercion of Public Contractors Before Grand Jury

    People v. Avant, 33 N.Y.2d 265 (1973)

    The state cannot compel a public contractor to waive their Fifth Amendment right against self-incrimination by threatening to disqualify them from future contracts, and an indictment based on such compelled testimony must be dismissed, although re-indictment is possible with independently obtained evidence.

    Summary

    Avant, public contractors, were subpoenaed by a grand jury investigating city purchasing practices. They signed a limited waiver of immunity, fearing disqualification from future contracts under General Municipal Law § 103-b. They were subsequently indicted. The Court of Appeals held that the waiver was unconstitutionally coerced, as the threat of losing future contracts was akin to the threat of losing employment, violating their Fifth Amendment rights. The indictment was dismissed, but the court clarified that re-indictment was permissible if based on evidence independent of the compelled testimony.

    Facts

    The defendants, public contractors, had a snow removal contract with the City of Albany in 1969-1970.
    In 1971, they were subpoenaed to appear before the Albany County Grand Jury regarding the city’s purchasing practices.
    They executed a limited waiver of immunity related to their snow removal contract and surrendered requested records.
    Subsequently, they were indicted for grand larceny and knowingly offering a false instrument for filing.

    Procedural History

    Defendants moved to dismiss the indictments, arguing that General Municipal Law § 103-b compelled them to furnish incriminating evidence.
    The trial court agreed and dismissed the indictments.
    The Appellate Division reversed, finding a distinction between public employees and contractors.
    The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the threat of disqualification from future public contracts constitutes unconstitutional coercion, violating the Fifth Amendment privilege against self-incrimination when a contractor is compelled to waive immunity before a grand jury.
    Whether an indictment based on testimony obtained through such unconstitutional coercion must be dismissed.

    Holding

    1. Yes, because the threat of losing future contracts is a significant infringement on constitutional rights, similar to the threat of job loss for public employees.
    2. Yes, because calling a target of an investigation before a grand jury violates their constitutional privilege against self-incrimination, mandating dismissal of the indictment.

    Court’s Reasoning

    The Court of Appeals relied heavily on the Supreme Court’s decision in Lefkowitz v. Turley, which invalidated General Municipal Law §§ 103-a and 103-b. The Supreme Court found no “difference of constitutional magnitude between the threat of job loss to an employee of the State, and a threat of loss of contracts to a contractor.” The court reasoned that compelling testimony under threat of penalty (loss of contracts) violates the Fifth Amendment.
    The court distinguished between the right of the State to compel public servants or those with a special duty to the State to account for their activities, and the impermissibility of using compelled testimony in subsequent criminal prosecutions (citing Gardner v. Broderick and Garrity v. New Jersey).
    The court applied the rule from People v. Steuding, stating that a prospective defendant or target of a grand jury investigation cannot be called and examined, and if they are, their privilege against self-incrimination is violated, requiring dismissal of the indictment.
    However, the court clarified that this does not grant automatic immunity. Re-indictment is permissible if sufficient evidence, independent of the compelled testimony, is presented (citing People v. Laino). The court noted that at the time, New York law required an affirmative claim of the privilege against self-incrimination to obtain full transactional immunity.
    The court emphasized that while the municipality could still call upon the contractors to account for their public trust, all subsequent proceedings must fully recognize their constitutional rights. “Rather, the State must recognize…that answers elicited upon the threat of the loss of employment are compelled and inadmissible in evidence.”

  • People v. Samuel, 29 N.Y.2d 252 (1971): Constitutionality of ‘Hit and Run’ Laws Requiring Driver Identification

    People v. Samuel, 29 N.Y.2d 252 (1971)

    A statute requiring a motor vehicle operator involved in an accident to remain at the scene, identify themselves, and report the accident is a valid exercise of police power and does not violate the privilege against self-incrimination.

    Summary

    The New York Court of Appeals addressed the constitutionality of Section 600 of the Vehicle and Traffic Law, which requires drivers involved in accidents to remain at the scene and identify themselves. The defendants, convicted of violating this “hit and run” statute, argued it violated their Fifth Amendment right against self-incrimination. The court upheld the statute, reasoning that it’s a valid exercise of the state’s police power to regulate activities related to public safety. The limited risk of self-incrimination is outweighed by the state’s interest in regulating motor vehicle operation for public welfare. The court emphasized the distinction between regulating lawful activities (driving) and inherently suspect criminal activities.

    Facts

    The defendants in these consolidated cases were each convicted of violating Section 600 of the Vehicle and Traffic Law for leaving the scene of an accident without identifying themselves. The accidents involved personal injuries to occupants of other vehicles or pedestrians. In two cases, the drivers fled without removing their vehicles from the scene. The defendants argued that the statute violated their constitutional privilege against self-incrimination because remaining at the scene and identifying themselves could potentially lead to criminal charges.

    Procedural History

    The defendants were convicted in lower courts for violating Section 600 of the Vehicle and Traffic Law. They appealed their convictions, arguing the statute’s unconstitutionality. The cases were consolidated on appeal to the New York Court of Appeals, which reviewed the lower courts’ decisions and ultimately affirmed the convictions, upholding the statute’s validity.

    Issue(s)

    Whether Section 600 of the Vehicle and Traffic Law, requiring a motor vehicle operator involved in an accident to remain at the scene and identify themselves, violates the Fifth Amendment privilege against self-incrimination.

    Holding

    No, because the statute is a valid exercise of the state’s police power to regulate activities directly related to public safety, and the incidental risk of self-incrimination is outweighed by the public interest in regulating motor vehicle operation.

    Court’s Reasoning

    The court acknowledged the potential for self-incrimination but emphasized the state’s compelling interest in regulating motor vehicle operation. The court noted the high number of deaths and injuries resulting from traffic accidents and the importance of identifying vehicles and operators for safety and accountability. The court distinguished this case from those involving statutes targeting activities “inherently suspect of criminal activities,” like gambling, where the primary purpose is to uncover criminal conduct. Here, the primary purpose of Section 600 is to regulate a lawful activity (driving) and promote public safety by ensuring drivers are accountable after accidents. The court stated, “If the purpose of the statute is to incriminate, it is no good. If its purpose is important in the regulation of lawful activity to protect the public from significant harm, especially to the person but also to property, and only the incidental effect is occasionally to inculpate, then the statute is good within constitutional limitations.” The court also considered the historical context, noting that self-reporting requirements in motor vehicle statutes are nearly as old as the motor vehicle itself. They also reasoned that minimal disclosure is expected and part of “everyday morality.” A use restriction on the information obtained (prohibiting its use in subsequent criminal prosecutions) was considered, but rejected as it would defeat some of the purposes of New York’s regulatory scheme.