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.