The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined (1) the People did not improperly call an eyewitness to the shooting to invoke his privilege against self-incrimination in front of the jury; (2) the People were properly allowed to impeach the eyewitness with his statement made to police at the time of the incident; and (3) expert testimony offered by the defense on the effect of “event stress” on the identification of the defendant was properly precluded. A Frye hearing was not required before preclusion. The expert witness was allowed to testify about “weapon focus” and “witness confidence.” With respect to a witness' invocation of the privilege against self-incrimination in front of the jury, the court explained the analytical criteria:
The Fifth Amendment of the United States Constitution directs that no person “shall be compelled in any criminal case to be a witness against himself” (US Const Amend V). When a witness invokes the Fifth Amendment privilege in front of the jury, “the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant's right to a fair trial” … . It is therefore reversible error for the trial court to permit the prosecutor to deliberately call a witness for the sole purpose of eliciting a claim of privilege … . The critical inquiry is whether the prosecution exploited the witness's invocation of the privilege, either by attempting “to build its case on inferences drawn from the witness's assertion of the privilege” or utilizing those inferences to “unfairly prejudice [the] defendant by adding 'critical weight' to the prosecution's case in a form not subject to cross-examination” … . People v Berry, 2016 NY Slip Op 02283, CtApp 3-29-16
CRIMINAL LAW (PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION)/CRIMINAL LAW (PEOPLE'S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT)/CRIMINAL LAW (EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)/EVIDENCE (CRIMINAL LAW, PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION)/EVIDENCE (CRIMINAL LAW, PEOPLE'S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT)/EVIDENCE (CRIMINAL LAW, EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)/IDENTIFICATION (CRIMINAL LAW, EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)