holding that trial court has discretion to permit defendant to call accused witness to stand and permit witness to invoke Fifth Amendment privilege in front of jury where entire defense was centered on witness’ commission of crime
How later courts described this case
- holding that trial court has discretion to permit defendant to call accused witness to stand and permit witness to invoke Fifth Amendment privilege in front of jury where entire defense was centered on witness’ commission of crime
- recognizing that exercise of trial court’s decision regarding witness’ invocation of Fifth Amendment in jury’s presence requires consideration of defendant being “entitled to have his defense fully presented to the jury”
- observing that, even in criminal cases, invocation of the Fifth Amendment privilege has evidentiary value, albeit the fact-finder may be precluded from considering it
- stating in dicta that trial court has discretion to permit defendant to call a witness to invoke his Fifth Amendment privilege in the presence of the jury, but declining to decide whether discretion was abused and reversing on other grounds
Written by the judges who cited it.
The opinion
WILNER, Judge,
concurring, in which RAKER and HARRELL, JJ., join.
I join in the Court’s opinion but write separately to address an issue, which I think is an important one, that is not *582 addressed in that opinion. It has to do with the trial court’s discretion to require a defense witness, whom the court knows intends to exercise a valid right not to testify, to exercise that right before the jury. I am satisfied that the court has some discretion in that regard. I believe, however, that, first, the court must be very careful before using that procedure, and, second, if it does allow the defense to force the witness to exercise his or her right in front of the jury, the court may limit the scope and extent of the examination.
What is desired by the defendant in this setting is for the jury to draw an inference from the witness’s very invocation of his or her Constitutional right to be free from compelled self-incrimination that the witness is, in fact, guilty of whatever crime is the subject of the inquiry. What the court must keep in mind, however, is that, although the right itself may not be invoked unless a reasonable basis is established for it, the refusal to answer does not necessarily mean that the witness has committed the offense or that, if he or she did commit an offense, that would exculpate the defendant. It may just as well be that, by answering, the witness could be providing self-incriminating evidence of some other offense, having nothing whatever to do with the crime charged to the defendant, or some lesser offense that is related in some way to the crime charged to the defendant but that would not serve to exculpate the defendant — being an accessory or a conspirator, for example.
The second problem lies in the extent of any examination that is allowed. Maryland Rule 5-403, which allows a court to exclude evidence, even relevant evidence in a criminal case, if the probative value of that evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, is applicable. The defendant’s proper goal may be achievable by the propounding of just a few basic questions to the witness. The court, in my view, is not required to allow a wholesale fishing expedition by defense counsel that, in effect, puts the witness on trial through unanswerable accusations. *583 One may easily imagine, in this case, Mr. Gatton being subjected to dozens, or hundreds, of questions, and being required to invoke his Constitutional right of silence over and over and over.
In many instances, perhaps in most, the best course of action would be to have the witness invoke the privilege and make clear his or her unwillingness to testify, outside the presence of the jury, and for the court then to inform the jury that (1) the witness was called to testify, (2) the witness invoked his or her right not to answer questions, (3) the witness may not be compelled to give testimony that might be self-incriminating, and (4) it is for that reason that the jury will not be hearing from the witness. Except in those situations where it is particularly important for the witness to be called to the stand before the jury — where, for example, the witness is willing to testify to some matters but not to others — this procedure not only informs the jury of the true state of affairs but gives the defendant the full prospect of the desired inference without the danger of unfair prejudice either to the witness or to the State.
I do not read the Court’s opinion as precluding the exercise of the court’s discretion in these manners.
Judges RAKER and HARRELL have authorized me to state that they join in this concurring opinion.