PRIVILEGE (FIFTH AMENDMENT) – New York Appellate Digest

The Fourth Department reversed defendant’s conviction because the trial judge, sua sponte, struck all of his co-defendant’s testimony after the co-defendant invoked his privilege against self-incrimination. The defendant was entitled to have the exculpatory evidence presented by the co-defendant considered by the jury:

County Court erred in sua sponte striking the entire testimony of his codefendant after the codefendant invoked his privilege against self-incrimination, and we therefore reverse the judgment and grant a new trial … . We conclude that the court erred in failing to “weigh the options” in a “threshold inquiry” to determine whether “less drastic alternatives” were available, other than striking the entire testimony of the codefendant … . Here, the codefendant provided testimony that, if allowed to remain in the record, would have supported defendant’s positions that defendant did not engage in any scheme to defraud, and that the codefendant had pleaded guilty with respect to similar charges brought against him in order to avoid harsher penalties, and not because the codefendant had engaged in any fraudulent conduct. We further conclude that defendant had the right to have such “relevant and exculpatory testimony considered by the jury” … . We also conclude that the court’s error in striking the codefendant’s testimony is not harmless inasmuch as “the proof against defendant [is] not overwhelming and there is a reasonable probability that defendant would have been acquitted but for the error” … . People v Chadick, 2014 NY Slip Op 07789, 4th Dept 11-14-14

The Fourth Department granted defendant a new trial because the defense request for a missing witness jury instruction was denied. The witness, who had testified before the grand jury, was the only eyewitness to the relevant events. The prosecutor argued the witness was unavailable because he would assert his Fifth Amendment privilege against self-incrimination. The Fourth Department determined the witness’ unavailablity was not sufficiently established:

Contrary to the People’s contention, they failed to establish that the eyewitness was unavailable. Although the People correctly note that “a witness who on Fifth Amendment grounds refuses to testify will be considered unavailable’ although the witness’s presence is known and apparent” …, the People failed to establish that the eyewitness was unavailable on that ground. An uncharged accomplice may be considered unavailable in certain circumstances …, but the statements made by the prosecutor were not sufficient to establish that the eyewitness was an accomplice or that he faced any criminal liability for his actions … . The People’s further contention that the prosecutor could not call the eyewitness inasmuch “as his attorney will have him plead the Fifth Amendment” is not supported by evidence in the record before us. It is well settled that a trial court “should . . . be reasonably sure that the witness will in fact invoke the privilege, and where there is doubt the witness should be brought before the court and asked the relevant questions” … . Here, the prosecutor did not call the eyewitness and there was no communication from the eyewitness’s attorney; thus, “there was no verification that [the eyewitness] would plead the Fifth Amendment on the stand” … . The People’s “bare allegation that the witness in question apparently’ would assert [his] Fifth Amendment privilege, in light of the attendant circumstances, did not render that witness unavailable” … . People v Fuqua, 2014 NY Slip Op 07784, 4th Dept 11-14-14

Tag Archive for: PRIVILEGE (FIFTH AMENDMENT)

Exculpatory Evidence Provided by Co-Defendant Should Not Have Been Struck from the Record When Co-Defendant Asserted His Privilege Against Self-Incrimination

Request for Missing-Witness Jury Instruction Should Have Been Granted—Prosecutor’s Statement that the Witness Would Exercise His Fifth Amendment Privilege Against Self-Incrimination Not Enough to Demonstrate Witness’ Unavailability

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