trial court’s refusal to instmct on self-defense did not penalize defendant for exercising his Fifth Amendment privilege not to testify: “Under certain circumstances, such as those at bar where indirect evidence of self-defense is insufficient to support an instruction, that fact does not constitute a penalty upon the exercise of fifth amendment rights.”
How later courts described this case
- trial court’s refusal to instmct on self-defense did not penalize defendant for exercising his Fifth Amendment privilege not to testify: “Under certain circumstances, such as those at bar where indirect evidence of self-defense is insufficient to support an instruction, that fact does not constitute a penalty upon the exercise of fifth amendment rights.”
- “we find no basis in law or reason to hold that the privilege does not so apply”
- prosecutor’s comments in closing argument concerning gory and graphic details of death scene, personal opinion of credibility of witnesses, and witnesses’ conduct and testimony not based on evidence introduced at trial constituted plain error
- reversing murder conviction and remanding for either retrial or entry of judgment for lesser-included offense of manslaughter
Written by the judges who cited it.
The opinion
GALLAGHER, Associate Judge,
Retired, concurring and dissenting statement:
I do not agree with the majority that the prosecutor's statements “were tantamount to comment on appellant’s failure to testify.” The prohibition on such comment is being stretched too far. The comment in this case came more nearly under our ruling in Christian v. United States, 394 A.2d 1 , 33 n.86 (D.C.1978). The comments were “within the bounds of reasonable advocacy” and were not of such a character that the jury would necessarily take them to be a comment on the failure of the defendant to testify.
I do agree, however, that there was prejudicial error when, notwithstanding the marital privilege, the prosecutor attacked the witness Elsie Mae Linder during closing argument for her refusal to testify against appellant, her common-law husband. I agree that the marital privilege applies to common-law marriages and that here Linder effectively asserted that privilege. However, violation of the privilege does not always warrant reversal. Rather, the testimony elicited in violation of the privilege must be assessed under a harmless error analysis to determine if prejudice resulted. See United States v. Pariente, 558 F.2d 1186, 1190 (5th Cir.1977).
Ms. Linder testified that appellant was not the initial aggressor in an assault that preceded the shooting in question. This tended to negate the “malice” element of second degree murder and therefore clearly did not prejudice appellant. This testimony, although obtained in violation of the marital privilege, was harmless.
I view as prejudicial, however, the prosecutor’s comments in closing argument in reference to Linder’s hesitancy to testify against appellant. The comments amounted to use of Linder’s unsuccessful assertion of the marital privilege for impeachment purposes. The government’s evidence that appellant acted with malice was weak, and Linder’s testimony tended to counter that evidence. Given the importance of Linder’s testimony to appellant’s case, I do not view the improper credibility attack as harmless. I, therefore, join in the court’s disposition of this case.