New York Law Review

Tag: self-incrimination

  • 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. Berg, 92 N.Y.2d 701 (1999): Admissibility of Refusal to Perform Field Sobriety Tests Without Miranda Warnings

    People v. Berg, 92 N.Y.2d 701 (1999)

    Evidence of a defendant’s refusal to submit to field sobriety tests is admissible even without Miranda warnings, as such refusal is not considered compelled within the meaning of the Self-Incrimination Clause.

    Summary

    The New York Court of Appeals addressed whether evidence of a defendant’s refusal to perform field sobriety tests is admissible when the defendant was not given Miranda warnings before the request. The court held that the refusal was admissible. The court reasoned that the refusal was not compelled within the meaning of the Fifth Amendment because the tests themselves are not testimonial in nature, and the defendant had the option to take the test. This decision clarifies the scope of Miranda rights in the context of DWI investigations and allows prosecutors to present evidence of refusal to perform sobriety tests.

    Facts

    In the early morning, the defendant drove her car into a ditch near a State Trooper’s residence. The Trooper, upon investigation, noticed signs of intoxication. The defendant initially asked the Trooper for assistance and requested that he not call the police. She then left the scene and was later found hiding in bushes. At the police station, the officer asked her to perform several field sobriety tests, including reciting the alphabet, the horizontal gaze nystagmus test, the walk and turn, and the one-leg stand. The defendant refused to perform the tests before being arrested and given Miranda warnings.

    Procedural History

    The defendant was indicted for driving while intoxicated (felony) and aggravated unlicensed operation of a motor vehicle. The County Court ruled the evidence of the defendant’s refusal inadmissible due to the lack of Miranda warnings. The Appellate Division reversed this decision, finding Miranda warnings unnecessary. The New York Court of Appeals then affirmed the Appellate Division’s order.

    Issue(s)

    Whether evidence of a defendant’s refusal to submit to field sobriety tests is admissible at trial when the defendant has not been given Miranda warnings prior to the request to take the tests.

    Holding

    Yes, because the defendant’s refusal to perform the field sobriety tests was not compelled and therefore not the product of custodial interrogation triggering Miranda safeguards.

    Court’s Reasoning

    The Court of Appeals reasoned that while the Fifth Amendment protects individuals from compelled self-incrimination, this protection has limitations. First, it applies only to testimonial or communicative evidence, not real or physical evidence. Second, Miranda safeguards are only triggered when an individual is subjected to custodial interrogation. The court emphasized that field sobriety tests do not reveal a person’s subjective knowledge but rather exhibit a person’s degree of physical coordination for observation. “Responses to such tests incriminate an intoxicated suspect ‘not because the tests [reveal] defendant’s thoughts, but because [defendant’s] body’s responses [differ] from those of a sober person.’” Furthermore, the court found that there was no direct compulsion on the defendant to refuse the tests. She had the option to take the tests. Because the results of field sobriety tests are not testimonial, the State can request that she take them without violating the Self-Incrimination Clause. The absence of a statute specifically authorizing the admissibility of refusal evidence for field sobriety tests, unlike chemical analysis tests, was deemed constitutionally insignificant.

  • People v. Smith, 87 N.Y.2d 715 (1996): Limits on Cross-Examination Before Grand Jury

    People v. Smith, 87 N.Y.2d 715 (1996)

    The rule prohibiting cross-examination of a defendant regarding pending criminal charges (Betts rule) does not apply to Grand Jury proceedings because a defendant’s right to appear before a Grand Jury is statutory and conditioned on waiving the privilege against self-incrimination.

    Summary

    The New York Court of Appeals addressed whether the principle in People v. Betts, which prevents a prosecutor from cross-examining a testifying defendant about pending criminal charges, extends to Grand Jury proceedings. The Court held it does not. Smith, indicted for grand larceny, argued his right to testify before the Grand Jury was violated when he was informed he would be cross-examined about a prior robbery and potential perjury charges. The Court reasoned that unlike the constitutional right to testify at trial, the right to testify before a Grand Jury is statutory and contingent on waiving immunity and submitting to cross-examination. The limited function of the Grand Jury and the conditional nature of the right to testify justified the distinction. The indictment was upheld.

    Facts

    Smith was convicted of robbery in 1977.
    In 1990, while testifying before a Grand Jury on an unrelated matter, he denied involvement in the 1977 robbery.
    In 1992, he was indicted for perjury based on his Grand Jury testimony.
    Subsequently, larceny charges were presented to the Grand Jury.
    Smith sought to testify but was advised that he would be cross-examined about the 1977 robbery, and his testimony could be used against him in the perjury case.
    Smith chose not to testify and was indicted for grand larceny.

    Procedural History

    Smith moved to dismiss the grand larceny indictment, arguing his right to testify before the Grand Jury was violated.
    The trial court denied the motion.
    The Appellate Division reversed, dismissing the indictment.
    The New York Court of Appeals reversed the Appellate Division’s order and reinstated the indictment.

    Issue(s)

    Whether the rule established in People v. Betts, prohibiting cross-examination of a defendant about pending criminal charges, applies to Grand Jury proceedings, thereby precluding a prosecutor from cross-examining a potential Grand Jury witness about pending charges.

    Holding

    No, because the right to testify before a Grand Jury is statutory and conditional, unlike the constitutional right to testify at trial. The Betts rule, designed to protect a defendant’s right against self-incrimination while preserving the right to testify at trial, does not extend to Grand Jury proceedings where a defendant must waive immunity and submit to cross-examination as a condition of testifying.

    Court’s Reasoning

    The Court distinguished between the right to testify at trial (a constitutional right) and the right to testify before a Grand Jury (a statutory right). The latter is conditional upon waiving immunity and submitting to cross-examination (CPL 190.50[5][b]).
    The Court emphasized the limited role of the Grand Jury: to determine whether sufficient evidence exists to bring charges, not to determine guilt or innocence. This limited role diminishes the need to apply the Betts rule to enable a defendant to present a defense before the Grand Jury.
    The Court stated that the Betts rule was designed to address a Hobson’s choice of constitutional magnitude where exercising the Sixth Amendment right to testify could waive the Fifth Amendment right against self-incrimination. Because the statutory right to testify before the Grand Jury requires waiver of the right against self-incrimination, that balancing is not necessary.
    The dissent argued that the majority’s decision overlooked the defendant’s important right to avoid self-incrimination in the pending matter.
    The majority countered that the Betts balancing test is unnecessary because the right to testify before the Grand Jury requires waiving the right to avoid self-incrimination. The court need not perform the balancing equation required by the competing rights at stake in Betts.

  • 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. 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.”

  • Matt v. LaRocca, 71 N.Y.2d 154 (1988): Duty to Inform Public Employees of Automatic Immunity

    Matt v. LaRocca, 71 N.Y.2d 154 (1988)

    A public employer is not obligated to inform a public employee that immunity from criminal prosecution attaches automatically when the employee is compelled to answer questions directly related to their official duties under threat of dismissal.

    Summary

    Matt, a Department of Transportation supervisor, was dismissed for refusing to answer questions about misconduct in his division, invoking his Fifth Amendment privilege. He argued that he was not informed of the automatic immunity from criminal prosecution that would attach if he answered. The Court of Appeals reversed the Appellate Division’s decision to reinstate Matt, holding that there is no requirement for the State to inform a public employee of this automatic immunity. The court emphasized that the immunity flows directly from the Constitution and is not subject to the employer’s discretion.

    Facts

    Matt, a supervisory employee, was investigated for unauthorized employee absences and misuse of State property. He initially cooperated, but disciplinary charges were filed, and he was suspended. A criminal investigation was also initiated. The Commissioner of Transportation then requested Matt to testify under oath about matters under his jurisdiction, but Matt refused, invoking his Fifth Amendment privilege against self-incrimination, even when ordered to answer and warned about insubordination charges.

    Procedural History

    Disciplinary charges were brought against Matt for insubordination. After a hearing, the Commissioner accepted the Hearing Officer’s determination, but rejected the recommended two-month suspension and instead ordered Matt discharged. Matt then filed an Article 78 proceeding challenging the Commissioner’s determination. The Appellate Division granted the petition, but the Court of Appeals reversed that decision.

    Issue(s)

    Whether a public employer is required to inform a public employee that they automatically receive immunity from criminal prosecution when compelled to answer questions directly related to their official duties under threat of dismissal.

    Holding

    No, because the immunity flows directly from the Constitution, attaches automatically by operation of law, and is not subject to the employer’s discretion; thus, the employer has no affirmative obligation to inform the employee of the automatic attachment of immunity.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. Masiello, which held that a witness before a Grand Jury must be accurately informed about the scope of immunity conferred. Here, Matt’s appearance was at a civil proceeding for work-related misconduct, not a Grand Jury investigation. The Court noted that the immunity protecting Matt flowed directly from the Constitution. It emphasized that public employees do not have an absolute right to refuse to account for their official actions while retaining employment. Citing Gardner v. Broderick, the court stated that the privilege against self-incrimination is not a bar to dismissal where a public servant refuses to answer questions specifically, directly, and narrowly relating to the performance of their official duties, without being required to waive immunity. The court reasoned that because the Commissioner’s representative did not have the power to confer or modify the immunity, there was no basis for concluding that he had an obligation to inform Matt of the automatic attachment of immunity.

  • People v. Hager, 69 N.Y.2d 141 (1987): Physical Dexterity Tests and Self-Incrimination

    People v. Hager, 69 N.Y.2d 141 (1987)

    Physical dexterity tests, such as walking a straight line, do not constitute testimonial evidence protected by the Fifth Amendment privilege against self-incrimination because they exhibit a person’s physical coordination, not their subjective knowledge or thought processes.

    Summary

    Hager was convicted of leaving the scene of an accident. Police apprehended him shortly after the incident and, smelling alcohol on his breath, administered physical coordination tests (e.g., balancing, walking a straight line) and a breathalyzer test without providing Miranda warnings. Hager argued the performance test results should be suppressed as a violation of his Fifth Amendment rights. The New York Court of Appeals affirmed the conviction, holding that physical dexterity tests do not elicit testimonial evidence and therefore do not trigger the requirement for Miranda warnings.

    Facts

    Catherine Kuehhas was struck by a car driven by Hager at approximately 12:40 a.m. on May 9, 1983.
    Eyewitnesses reported that Hager stopped briefly at the scene but then drove away without providing identification.
    Police pursued and apprehended Hager shortly after the incident.
    The investigating officer detected the smell of alcohol on Hager’s breath.
    Hager was taken to Central Testing Headquarters and consented to physical coordination tests and a breathalyzer test.
    Miranda warnings were not given before the physical coordination tests.

    Procedural History

    Hager was convicted of violating Vehicle and Traffic Law § 600 (2)(a) and (b) (leaving the scene of an accident) and sentenced to probation.
    Hager appealed, arguing that the physical performance test results should have been suppressed.
    The Appellate Division affirmed the conviction.
    Hager appealed to the New York Court of Appeals.

    Issue(s)

    Whether the results of physical coordination tests administered to a suspect without Miranda warnings are admissible as evidence, or whether they violate the suspect’s privilege against self-incrimination under the Fifth Amendment and the New York State Constitution.

    Holding

    No, because the privilege against self-incrimination applies only to testimonial or communicative evidence, and physical performance tests demonstrate a person’s physical condition rather than revealing subjective knowledge or thought processes.

    Court’s Reasoning

    The court reasoned that the privilege against self-incrimination protects individuals from being compelled to provide “evidence of a testimonial or communicative nature” (citing Schmerber v. California, 384 U.S. 757, 761). The key distinction lies between evidence that reveals a person’s subjective knowledge or thought processes and evidence that simply exhibits a person’s physical characteristics or condition.
    The court stated, “Evidence is ‘testimonial or communicative’ when it reveals a person’s subjective knowledge or thought processes.”
    Physical performance tests, such as balancing tests and walking a straight line, fall into the latter category. They demonstrate a person’s degree of physical coordination, which is observable by police officers, rather than revealing any thoughts or beliefs.
    “The defendant’s responses to those tests in this case indicated he had imbibed alcohol, not because the tests revealed defendant’s thoughts, but because his body’s responses differed from those of a sober person” (citing People v. Boudreau, 115 A.D.2d 652, 654).
    The court concluded that because the performance tests did not elicit testimonial evidence, Miranda warnings were not required prior to their administration. The evidence obtained from the tests was therefore admissible.