Self-Incrimination
Category > Self-Incrimination
The choice between agreeing to the mandatory Fifth Amendment waiver as a condition of probation or facing immediate incarceration was impermissibly coercive. Defendant pled no contest to two sex offenses and was sentenced to a term of probation. The probation condition statutorily required in Penal Code section 1203.067, subd.(b)(3) that defendant waive his privilege against self-incrimination is unconstitutional and invalid.id: 24921
Requiring defendant to testify at his SVP trial may violate his equal protection rights and the prosecution must show under the strict scrutiny test why SVP’s should be treated differently from NGI’s.The trial court allowed the prosecutor to call defendant as a witness at his SVP commitment trial. SVPs are similarly situated with not guilty by reason of insanity commitees who have a right not to be called to testify. The prosecution must establish under the strict scrutiny standard that the disparate treatment is justified. The matter was remanded for a hearing to allow the prosecution a chance to make the required showing.id: 24793
Section 654 precludes separate punishment for the same act of possessing a controlled substance for sale and transporting the same substance for sale.The trial court violated Penal Code section 654 by imposing separate sentences for possession of heroin for sale and transportation of the same heroin for sale on the same occasion.id: 24769
MDOs, like SVPs and NGI defendants have a statutory right not be compelled to testify in proceedings to extend their commitments.Mentally disordered offenders are similarly situated with not guilty by reason of insanity defendants and sexually violent predators for purposes of the testimonial privilege provided in Penal Code section 1026.5. However, defendant’s appeal was moot because a subsequent petition for recommitment was denied based on the court’s finding that he no longer met the criteria for commitment as an MDO.id: 24659
Evidence did not support the resisting a police officer conviction where the minor told the suspects and nonsuspects not to cooperate with the police, and refused to provide his name when arrested.The evidence did not support the minor’s conviction for obstructing a peace officer under Penal Code section148. The minor’s verbal protests against the detention of his friends, prearrest, were protected political speech under the First Amendment. His prearrest conduct in telling the nonsuspect minors not to cooperate amount to nothing more than lawful protest against unlawful detention. Finally, the minor’s refusal to identify himself postarrest, but before being transported to the station was lawful silence under the Fifth Amendment.id: 24438
The trial court may have violated defendant’s equal protection rights by compelling his testimony in the SVP trial since a defendant in NGI commitment extension trials cannot be compelled to testify.Defendant was committed as a sexually violent predator. He argued that he was deprived of his right to equal protection when he was called to testify during the prosecutor’s case-in-chief because a person found not guilty by reason of insanity may not be compelled to testify at a hearing to extend his or her commitment, and neither should a person in SVP proceedings be forced to testify. Defendant’s failure to object at trial did not forfeit the issue on appeal because there was law holding an SVP could be compelled to testify and so an objection would have been futile. Next, NGI’s and SVP’s are similarly situated for the present purpose. The prosecution here failed to justify the disparate treatment allowing compelled testimony from an SVP but not an NGI. The matter was remanded for a hearing allowing the prosecution to make the showing. id: 24122
The Fifth Amendment prohibits the waiver of the privilege against self-incrimination as a condition of probation. The trial court erred by imposing a probation condition requiring that defendant waive “any privilege against self-incrimination” and participate in polygraph examinations as part of the program. However, a defendant may be required to participate in polygraph examinations to the extent the questions posed to him relate to the successful completion of the program, the crimes of which he was convicted, or related criminal behavior.id: 23741
NGI committees facing a commitment extension hearing enjoy the constitutional rights guaranteed to criminal defendants, including the right to refuse to testify. A defendant in a hearing to extend a commitment after a finding of not guilty by reason of insanity (Penal Code section 1026.5) has a right to refuse to testify, the right guaranteed to criminal defendants under the Fifth Amendment. id: 23929
The trial court prejudicially erred by allowing testimony it knew to be false to used at trial and by not disclosing to the parties that the witness had repudiated his claim. The trial court erred by allowing the prosecution to use the alleged robbery victim’s former testimony from the preliminary hearing. The witness’s attorney informed the court before trial that the witness had not been robbed and no gun was used in the incident. He said the witness would invoke his Fifth Amendment privilege. The prosecutor argued at trial that the witness feared gang retaliation if he testified. The prosecutor did not know the witness had admitted to lying initially. The jury should have been allowed to consider the preliminary hearing testimony in light of his current claim that it was a lie.id: 23186
The prosecutor could not compel the defendant’s testimony at a trial to extend his NGI commitment.The trial court erred by granting the prosecutor’s motion to compel the defendant to testify in a trial to extend his not guilty by reason of insanity hospital commitment under Penal Code section 1026.5. The statute provides that the rights afforded in criminal proceedings “shall” be afforded to those facing a civil commitment trial. Therefore the defendant had the right not to incriminate himself.id: 23280
Statements to Penal Code section 1368 evaluators were inadmissible at the sanity phase.Permitting the doctors to testify at the sanity trial about statements defendant made during competency evaluations and during his involuntary hospitalization violated the judicially declared rule of immunity announced in Tarantino v. Superior Court (1975) 48 Cal.App.3d 465 and adopted in People v. Arcega (1982) 32 Cal.3d 504, and his Fifth Amendment privilege against self-incrimination.id: 19292
The trial court erred by ordering defendant to submit to an evaluation with a prosecution psychiatrist after the defense experts testified.The trial court erred by ordering defendant to submit to a psychiatric examination by a prosecution expert after defense experts testified on his behalf. However, neither the discovery statutes nor the constitution authorize such discovery. However, defendant was not prejudiced by the examination or the prosecution expert’s testimony that defendant refused to participate in the evaluation, in light of the other evidence presented.id: 20501
The trial court erred by forcing defendant to testify as a sanction for defense counsel's alleged discovery violation, and by instructing with CALJIC 2.28.The trial court prohibited a key defense witness from testifying as a sanction for not including her name on the defense witness list. This was a misapprehension of the facts, as the prosecutor had been told about the witness. The mistake led the court to force defendant to testify or rest without presenting any evidence. The court erred in forcing defendant to choose between his right to present a defense and his right to remain silent. The error was not cured by later allowing the other witness to testify since, by that time, the jury was informed of defendant's prior convictions. The court further erred by instructing the jury with CALJIC 2.28 which attributed defense counsel's malfeasance to defendant. The instruction has been largely criticized and will be modified in 2006.
id: 18715
Privilege against self-incrimination applies at a hearing to extend the commitment of a person found not guilty by reason of insanity.Penal Code section 1026.5 authorizes an extended commitment for treatment of a person found not guilty by reason of insanity. The privilege against self-incrimination bars the prosecution from questioning defendant about his mental state at the commitment extension hearing.id: 17780
Allowing impeachment of a testifying defendant with statements he made to mental health professionals appointed to determine his mental competency violated his privilege against self-incrimination.The trial court violated defendant's Fifth Amendment privilege against self incrimination when it allowed the prosecution to impeach him at trial with statements he made to the two court-appointed mental health professionals who were to determine his competency to stand trial.id: 19258
When the court knew the witness would invoke the Fifth Amendment, it might have been appropriate to permit him to testify and allow the jury to draw negative inferences rather than totally excluding the testimony.The defense theory of the case was that the child molest victim and her mother fabricated the alleged incidents in order to remove defendant from the scene and allow the mother to pursue other romantic interests. The defense wanted to put defendant's friend Monroe on the stand to testify as to a romantic invitation the victim's mother had extended to him. The prosecutor advised the court he could impeach Monroe with evidence that Monroe offered to pay the victim money if she would drop the charges. At a hearing outside the presence of the jury, Monroe invoked the Fifth Amendment and refused to answer any questions regarding his offer to the victim. The trial court may have erred in totally excluding the witness' testimony since there were less restrictive alternatives such as allowing him to testify and allowing the jury to draw negative inferences from his invocation of the Fifth Amendment.id: 12755
The court erred in repeatedly cautioning the witness about the folly of her decision to testify.When it appears that a witness may give self-incriminating testimony, the court has a duty to ensure that the witness is fully apprised of his or her Fifth Amendment rights. The court may do so by appointing counsel to advise the witness or the court may elect to discharge the duty itself. In the instant case, the court exceeded its duty to simply ensure the witness was fully apprised of her rights. The court in essence became an advocate repeatedly cautioning the witness about the folly of her decision. Even after defense counsel expressed concern that the court's comments were bordering on coercion and intimidation, the court persisted. The court performed acts unnecessary to the proper discharge of its duties.id: 12751
The court committed prejudicial error in allowing the prosecutor to examine the witness before the jury when it was clear she would refuse to testify.At a hearing outside the presence of the jury, a prosecution witness refused to answer questions concerning her involvement with the defendant. She asserted her Fifth Amendment rights. The witness was given immunity but she still refused to testify. The trial court committed prejudicial error by allowing the prosecutor to examine the witness before the jury when it was clear she would refuse to testify. The prosector used the occasion to imply the existence of facts which were not proved.id: 12750
The court violated section 356 by requiring disclosure of interview tapes as a condition for using their contents to impeach a prosecution witness. Defendant sought to impeach a prosecution witness with statements recorded in a conversation with a defense investigator. The court precluded the defense from asking any questions from the tape recorded interview unless it disclosed the recording and a transcript to the prosecutor. The court's ruling was erroneous under Evidence Code section 356 and a violation of his privilege against self-incrimination. Defendant did not seek to have a portion of the recording admitted into evidence and did not read from the transcript. The prosecutor was not entitled to review any part of the tape or transcript. However, the error under the pre-Prop 115 precedent was harmless where the recording was intended to show the witness' jealousy which was otherwise established.id: 12748
Supreme Court holds privilege against self-incrimination is available to those who claim innocence.Defendant was convicted of involuntary manslaughter in connection with the death of his two-month-old son. The coroner testified that the boy died from "shaken baby syndrome." The defense sought to shift the blame to the babysitter, who claimed her Fifth Amendment privilege against self-incrimination and testified at trial under a grant of transactional immunity. On appeal, the Ohio Supreme Court held that because the babysitter claimed she was innocent, she had no Fifth Amendment privilege and therefore it was error to grant transactional immunity. The Supreme Court granted certiorari and reversed in a unanimous per curiam opinion, noting that the privilege is available to witnesses who have "reasonable cause to apprehend danger from a direct answer." <i>Hoffman v. U.S.</i>, 341 U.S. 478, 486 (1951). That inquiry is for the court, and the witness' assertion does not by itself establish the risk of incrimination. <i>Id.</i> Thus, a danger of "imaginary and unsubstantial character" will not suffice. <i>Mason v. U.S.</i>, 244 U.S. 362, 366 (1917). However, one of the Fifth Amendment's basic functions if to "protect innocent men ... who might otherwise be ensnared by ambiguous circumstance." <i>Grunewald v. U.S.</i>, 353 U.S. 391, 421 (1957). In this case, the Supreme Court held that the babysitter had "reasonable cause" to apprehend danger from her answers if questioned at respondent's trial.id: 15132
Trial court erred by ordering defendant to give the jury a tour of his office, by questioning the defendant and permitting cross-examination by the prosecutor, and by informing the jurors defendant would testify further when the trial resumed at the courthouse.Defendant, a physician, was charged with sexual battery and misrepresenting his certification in a medical specialty. The defense claimed that if the accusations of improper sexual behavior were true, the misconduct would have been overheard by others in the office due to the lack of sound insulation in the medical suite. He filed a motion requesting a jury visit to his office. The defendant was sworn in for purposes of giving a tour of the office. Thereafter, the court asked defendant questions about where the drugs were stored. The court then invited cross-examination by the prosecutor. The court then again questioned defendant about the presence of drugs. The court later informed the jurors additional questions of the defendant could be asked when he would take the witness stand. Defense counsel had consented to the tour of the office by defendant. However, any other questions or cross-examination, especially relating to drug storage, violated the privilege against self-incrimination. Moreover, defendant's agreement to conduct the tour did not constitute a waiver of his constitutional rights. The court granted the petition for writ of habeas corpus and ordered the judgment set aside.id: 16809
Failure to instruct on nontestifying defendant's right not to testify is not reversible per se.The trial court's failure to give a nontestifying defendant's requested jury instructions explaining his constitutional right not to testify is error pursuant to <i>Carter v. Kentucky</i> (1981) 450 U.S. 288. However, the error is not reversible per se, but instead is subject to a harmless error analysis.id: 15866
The trial court erred by requiring defendant to testify out of order or rest his case after a scheduled defense witness could not be located.The trial court erred by requiring defendant to testify out of order or rest his case when a scheduled defense witness could not be located. The trial court's ultimatum, made in front of the jury, was an abuse of discretion and coerced defendant's waiver of the privilege against self-incrimination.id: 16756
Court erred in ordering disclosure of psychologist's interview notes where defense counsel indicated no decision had been made as to whether to call the expert to testify.Before the start of the second penalty trial, the prosecutor moved for discovery of all materials reviewed by any expert whom defendant intended to call as a witness. Defense counsel objected that such compelled disclosure regarding the notes of a psychologist defendant considered calling as a witness violated defendant's right against self-incrimination. The court erred in ordering production of the materials. While defendant may not object to vigorous cross-examination when he puts a witness on the stand, he does not waive his right to refuse to supply the prosection with the means to conduct that cross-examination. The defense ultimately decided not to call the psychologist and the prosecution therefore received an unwarranted windfall. However, the error was not prejudicial as the prosecutor made only a few passing references to the psychologist's notes and none of the information was particularly harmful.id: 12025
Bunnell requirements are applicable where a defendant submits to court trial on the degree of a homicide pursuant to a stipulation precluding a first-degree murder conviction.In exchange for eliminating defendant's exposure to special circumstances and first degree murder, he waived preliminary examination and submitted to a court trial to determine, based on police reports, taped statements by defendant, and defendant's testimony, whether he was guilty of second degree murder or manslaughter. The trial court erred by failing to obtain his waiver of the right against self-incrimination upon submission to court trial even though he reserved the right to testify and later testified. However, the error was not reversible. The submission in this case was not tantamount to a plea of guilty to second degree murder. It is extremely unlikely a judicial admonition about this right would have altered the defense strategy.id: 11529
Supreme Court bars drawing adverse inferences when defendant "takes the Fifth" at sentencing.Petitioner pled guilty to conspiracy and three substantive counts of selling cocaine within 1,000 feet of a school, reserving the right to contest the drug quantity. At sentencing, she put on no evidence and did not testify to rebut the government's evidence, claiming the Fifth Amendment privilege against self-incrimination. Nevertheless, the judge "held it against" her that she did not testify at sentencing. The Supreme Court reversed, unanimously agreeing that she had the right to invoke the Fifth Amendment privilege at sentencing. Moreover, splitting 5-4, the majority held that the sentencing judge may <i>not</i> draw an adverse inference from the defendant's silence. The majority expressed "no view" as to whether a defendant's silence may be considered in determining acceptance of responsibility under the sentencing guidelines. Justice Scalia dissented on the latter point, joined by Chief Justice Rehnquist and Justices O'Connor and Thomas.id: 15143
The court erroneously permitted the prosecution to introduce evidence of, and comment on, the silence of the accused after his arrest in England.The trial court erred in allowing the prosecutor to argue that appellant's silence at an extradition hearing, a proceeding criminal in nature, could be used against him and interpreted as an adoptive admission of the false testimony presented by others at the extradition hearing. The Fifth Amendment privilege against self-incrimination is available outside of criminal court proceedings and applied to the instant extradition proceedings even though they were conducted in England. Appellant's failure to object on Fifth Amendment grounds did not constitute a waiver of the claim. Moreover, cross-examination of appellant as to these statements by other witnesses at the extradition hearing was improper under any theory.id: 11216
Updated 3/7/2024The trial court did not err in granting the Fifth Amendment privilege of a witness who could have faced accessory charges if she testified. A potential defense witness refused to testify alleging a Fifth Amendment privilege against self-incrimination. Defendant argued the trial court erred in accepting the claim of privilege since the statute of limitations had expired on her accessory offense. However, the witness’s inconsistent statements might have had a tendency to incriminate her and the trial court did not err in granting the witness her Fifth Amendment privilege.id: 26351
Updated 3/4/2024Compelled use of defendant's finger to unlock his cell phone was not an illegal search and if so the good faith exception applied, and did not violate the privilege against self-incrimination.Police obtained a search warrant that allowed them to use defendant's finger to unlock his cell phone. Assuming the compelled use of defendant's finger constituted a search, suppression of the evidence was not required because the good faith exception applied. Also, compelled use of the finger to unlock the phone did not violate the privilege against self-incrimination because it did not constitute a testimonial act. Finally, the act did not render his later testimony involuntary for due process purposes.id: 28178
Updated 3/4/2024The witness asserted a valid Fifth Amendment privilege through counsel.Defendant argued a witness did not legally assert her Fifth Amendment privilege against self-incrimination because she was never called and sworn, and so the court erred in instructing the jury that the privilege applied, thereby preventing defense counsel from arguing on adverse inference from her refusal to testify. However, the witness asserted a valid Fifth Amendment privilege through counsel, making the related jury instruction proper.id: 28207
Updated 3/4/2024The trial court did not err at the penalty phase of defendant’s capital trial by allowing a mitigating witness to invoke his privilege against self-incrimination.The trial court did not violate defendant’s right to compulsory process and dilute mitigating evidence at the penalty phase of defendant’s case when it ruled that his former foster parent, who he said molested him as a child, had validly invoked his privilege against self-incrimination.id: 26972
There was no error in allowing a witness to invoke the Fifth Amendment when asked whether she gave defendant a gun, and the prosecution was not required to offer her immunity.Defense counsel asked a prosecution witness whether she gave defendant a handgun and she invoked her Fifth Amendment privilege. Defendant argued allowing the invocation violated his right of confrontation. However, the defense was able to question her about her relationship with defendant. Any hindrance to further cross-examination was not attributable to the prosecution or the court. The prosecution was not required to grant unsolicited immunity.id: 26200
Requiring polygraph exams as a condition of probation didn’t violate the Fifth Amendment since defendant retained the right not to have incriminating answers used against him in future proceedings.Defendant was convicted of certain sex offenses and placed on probation. The probation condition requiring him to submit to polygraph examinations as part of a sex offender management program did not impermissibly infringe on his Fifth Amendment privilege against self-incrimination because he retained the right not to have any incriminating answers used against him in a pending or future criminal proceeding.id: 24922
Probation condition requiring defendant to give cell phone passcode doesn’t violate the Fifth Amendment because probation is not a criminal proceeding.Defendant argued that because the electronic storage device search condition implicitly requires him to provide usernames and passwords, which are testimonial in nature, the condition violates his privilege against self-incrimination under the Fifth Amendment. However, the condition need not be stricken here since a state may validly insist on answers to even incriminating questions in administering its probation system, as long as it knows the answers may not be used in a criminal proceeding.id: 25417
MDO’s, like people facing involuntary civil commitments after a NGI finding, have a statutory right not to testify at commitment proceedings.Persons facing involuntary civil commitment as mentally disordered offenders are similarly situated with people subject to civil commitment after being found not guilty by reason of insanity. The latter group has a statutory right not to be compelled to testify at their commitment proceedings. Denying potential MDO’s the same right would violate equal protection. However, the issue was moot because the petition for recommitment was denied.id: 24751
The provision which prohibits bringing drugs into the jail is not limited to noninmate smugglers.Penal Code section 4573 makes it a felony for "any person" "to knowingly bring" a controlled substance into a custodial setting. The statute applies to someone who has a controlled substance in his possession when arrested for another crime, and who knowingly brings the drugs into jail when booked for that offense. Moreover, section 4573 does not implicate the Fourth Amendment privilege against self-incrimination by forcing the arrestee to choose before entering the jail between admitting unlawful drug possession or violating section 4573 and risking greater penalties.id: 21641
Prosecution under section 4573 for an arrestee who brought drugs into the jail, who remained silent when warned, did not violate the Fifth Amendment.Defendant was convicted of unlawfully bringing drugs into the jail in violation of Penal Code section 4573. In the companion case of People v. Low (S15161) ___ Cal.4th ___, the court held that provision applies to an arrestee's involuntary presence in the jail. Moreover, the provision involves no compelled incriminating testimony for Fifth Amendment purposes. Unlike in Low where the defendant falsely denied possessing drugs when booked into the jail, defendant here said nothing in response to the officer's warning about the drugs. Defendant committed a nontestimonial act for which he was not immune from prosecution under section 4573.id: 21642
The trial court properly allowed pretrial psychiatric testing of defendant who suggested he would present evidence of brain impairment, but disclosure of the testing result s would be delayed until he had a chance to assert privilege. The capital murder defendant notified the prosecution of his intent to introduce evidence of neurocognitive deficits. The prosecution then moved successfully for an order compelling defendant to submit to examination from court-ordered mental health experts. The Court of Appeal issued a peremptory writ permitting the examinations to proceed, but directing the trial court to delay disclosure of portions containing defendant’s statements. He must be given a chance to assert a claim of privilege against self-incrimination, with redaction of any material as to which the privilege claim is sustained, before disclosure to the prosecution. The court rejected defendant’s claim that disclosure must be deferred until defendant puts on mental state evidence at trial as the prosecution should have the chance to prepare its rebuttal case.id: 21569
The Kentucky courts did not unreasonably apply clearly established Supreme Court law by concluding the Fifth Amendment did not entitle a defendant at the penalty phase to a no-adverse-inference instruction. In the penalty phase of defendant’s capital murder trial, the court refused to instruct jurors to draw no inference from his failure to testify. The Kentucky Supreme Court’s ruling agreeing that no instruction was required was not an unreasonable application of clearly established Supreme Court law pursuant to 28 U.S.C. section 2254, subd.(d)(1). id: 23883
The prosecution may offer evidence from a court-ordered psych exam to rebut the defendant’s expert testimony. The Fifth Amendment does not prohibit the government from introducing evidence from a court-ordered mental evaluation of a criminal defendant to rebut the defendant’s presentation of expert testimony in support of a defense of voluntary intoxication.id: 23887
Supreme Court says a sex offender who is required to participate in prison rehabilitation program is not compelled to incriminate himself.Plaintiff, a state prisoner convicted of raping and sodomizing a high school girl, was ordered to participate in a sexual abuse treatment program. The program required him to admit and accept responsibility for his crime and any other sexual offenses he committed. Failure to participate in the program would result in curtailment of plaintiff's prison privileges and transfer to a maximum security prison. In a divided decision, the Supreme Court found that participation in the program would not violate plaintiff's Fifth Amendment privilege against self-incrimination. Four justices agreed that prisoners have a reduced privilege against self-incrimination, that the loss of prison privileges does not compel prisoners to incriminate themselves in violation of the Constitution, and that only "atypical and significant hardships on inmates" could constitute compulsion. Concurring, Justice O'Connor agreed that alterations in plaintiff's prison conditions did not constitute compulsion. Justice O'Connor joined the dissent, however, in rejecting the "atypical and significant hardship" test determining when a prison condition constitutes compulsion for Fifth Amendment purposes.id: 20140
The state may not require the waiver of the privilege against self-incrimination as a condition of probation set forth in section 1203.067, subd.(b)(3).Penal Code section 1203.067 requires any person placed on probation for a registerable sex offense to waive the privilege against self-incrimination and waive the psychotherapist-patient privilege. The condition requiring a waiver of the privilege against self-incrimination violates the Fifth Amendment. The provision requiring waiver of the psychotherapist-patient privilege is constitutional provided it is narrowly construed to require waiver only insofar as necessary to enable communication between the sex offender management professional and the supervisory probation officer.id: 23552
When a defendant pleads NGI and proposes to call a mental heath expert, the court may require that he or she submit to an exam by an expert retained by the prosecution.When the defendant in a criminal case has placed his or her mental state at issue through the proposed testimony of a mental health expert, Penal Code section 1054.3, subd.(b)(1) authorizes the court to order the defendant to submit to an exam by an expert retained by the prosecution. This statutory authority extends to a defendant who has pleaded not guilty by reason of insanity and proposes to call a mental health expert on the issue of sanity.id: 22727
Prosecutorial access to court-ordered exams when defendant introduces mental state evidence does not violate the privilege against self-incrimination.A recent amendment to California’s reciprocal discovery statute provides that when the defendant places his mental state in issue at any phase of a criminal case, he must submit to an exam by a prosecution retained mental health expert. The Court of Appeal found that, in this circumstance, certain prophylactic measures were necessary to protect the defendant’s Fifth Amendment privilege against self-incrimination including precluding prosecutors from monitoring the exam in real time, limiting pretrial access to the prosecutors, and in camera inspection of exam materials by the court. However, these procedures are not necessary and would be unfair to the prosecutor. id: 22687
Section 550, subd.(b)(3) requiring defendant confess to arson did not violate the privilege against self-incrimination because it was part of a broader antifraud provision.Defendant was convicted of concealing or knowingly failing to disclose an event affecting an insurance benefit in violation of Penal Code section 550, subd.(b)(3). Defendant argued the conviction violated his Fifth Amendment privilege against self-incrimination since it was premised on his failure to confess his intent to commit arson. However, because it is part of a broader antifraud provision, section 550, subd.((b)(3) satisfies the requirement that it be enacted for a compelling purpose other than to force a disclosure to be used in criminal law enforcement. id: 22672
While Danis, has been overruled, the prosecution may appoint mental health experts under section 730, and Defendant forfeited the issue by failing to object on statutory grounds.In People v. Danis (1973) 31 Cal.App.3d 782, the court authorized the prosecution experts to examine defendants who place their mental states at issue. In Verdin v. Superior Court (2008) 43 Cal.4th 1096, the court found Danis did not survive the enactment of the discovery statutes in 1990. However, there is a separate statutory basis for appointing mental health experts in Evidence Code section 730. Defendant here did not argue in the trial court that the prosecutor’s request to appoint a mental health expert violated section 730 and therefore she could not raise the issue on appeal. Moreover, she clearly placed her mental state in issue by claiming her actions were a product of battered woman syndrome.id: 22213
Defendant’s privilege against self-incrimination was not violated by his failure to report that he caused a boating accident.Defendant was convicted of violating Harbors and Navigation Code section 656.2 which requires the operator of a boat to stop and help, and provide identifying information when there has been an accident causing injury. He argued his privilege against self-incrimination was violated by the provision which required him to identify himself to the police as the operator of the boat that had struck the victim. The gravamen of the offense is leaving the scene of an accident without rendering aid or providing identifying information. There was no Fifth Amendment violation because the information required to be reported was regulatory in nature and did not give rise to criminal liability.id: 22202
An investigator who participated in defendant’s compelled statement could testify to matters independent of the statement.Defendant was a police officer charged with assault and filing a false report. He gave a compelled statement to the department investigators after being advised it would not be used against him in a criminal trial. At trial, the prosecutor called the person who took the statement to opine as to whether defendant had control of the arrestee during the arrest. That testimony did not violate Kastigar v. U.S. (1972) 406 U.S. 441, regarding the treatment of witnesses exposed to compelled statements, as the record showed the investigator relied on sources independent of defendant’s compelled statement.id: 21437
The trial court did not err in allowing defendant’s mental health expert to be impeached with the reports of the court appointed competency experts. Defendant presented expert testimony in support of a mental health defense at the guilt phase. The trial court did not err in allowing the prosecution to cross-examine the expert with the evidence on which he based his opinion, including the hospital records and reports of the court appointed competency experts.id: 21530
he trial court did not err in allowing the prosecutor to call a witness knowing she intended to remain silent and refuse the oath.The trial court permitted the prosecutor to call Luna as a witness, knowing that she intended to remain silent and refuse the testimonial oath risking contempt. Because she had already pled guilty and served a prison term for her involvement in the offense, she had no privilege to refuse to testify under the Fifth Amendment. Defendant argued the court’s ruling violated Evidence Code section 600, subd.(b), because there was no admissible nonspeculative inference that could be drawn from her refusal of the oath. However, the trial court did not err in admitting the courtroom conduct for the limited purpose of providing support for the gang expert’s opinion that gang members threaten potential witnesses. There was no confrontation clause violation because the witness never testified. id: 20983
The trial court did not err by compelling the witness to assert her Fifth Amendment privilege in front of the jury and permitting impeachment with evidence of her attempts to steal from her employer. Defendant’s mother testified as an alibi witness. The prosecutor informed the court outside the presence of the jury that he wanted to impeach the witness with specific instances of her false representations to others and theft. The trial court did not err by “forcing” the witness to invoke her Fifth Amendment privilege against self-incrimination in front of the jury and by permitting the prosecutor to impeach her with evidence that she had tried to steal from her employer.id: 20743
The trial court properly admitted the preliminary hearing testimony of a witness who invoked the Fifth at trial even though he ratified the truthfulness of his earlier testimony at an in limine hearing.Defendant argued the trial court erred by admitting the preliminary hearing testimony of a witness who exercised his Fifth Amendment privilege against self-incrimination at trial. Defendant claims the witness waived the privilege by testifying during the in limine hearing on the admissibility of his preliminary hearing testimony that the earlier testimony was true. However, there was no confrontation clause violation where the witness at the in limine hearing repeatedly invoked his Fifth Amendment privilege but then answered a general question calling for his ratification of the preliminary hearing testimony.id: 20325
Prosecutor did not unlawfully interfere with defendant's right to present a defense by refusing to execute the plea agreement of a witness who invoked the Fifth Amendment until after the defendant's trial.Defendant was convicted of special circumstances murder for instigating the shooting death of his business partner. The prosecutor decided not to call the actual shooter as a witness. When the defense indicated it would call the shooter, they were told he would invoke his Fifth Amendment privilege. The prosecutor plainly stated he would not execute the plea agreement with the witness until the trial was over. The law provides that the witness's assertion of the privilege controls over the defendant's right to present a defense. Defendant argued the prosecutor committed misconduct by interfering with defendant's right to present a defense. However, the defense was permitted to introduce the witness's statements through other witnesses. There was no constitutional violation where the witness's unavailability did not deprive defendant of his right to present a defense or due process.id: 17998
The trial court did not prejudicially err in allowing a witness to assert his Fifth Amendment right in the jury's presence. Defendant failed to show prejudicial error where the trial court permitted his brother to invoke his right against self-incrimination in front of the jury, rather than allowing him to do it outside the jury's presence. The action also did not violate defendant's constitutional right to present a defense since defendant never indicated he wanted to call his brother as a defense witness. Moreover, defendant's failure to object to this problem forfeited the argument on appeal.id: 19443
Supreme Court okays using defendant's uncounseled statements to show future dangerousness.In <i>Estelle v. Smith</i>, 451 U.S. 454 (1981), a psychiatrist conducted an ostensibly neutral competency examination of capital defendant, but then used defendant's uncounseled statements in his testimony about defendant's future dangerousness. The Supreme Court held that under the "distinct circumstances" of that case, defendant's Fifth Amendment right against self-incrimination was violated. Here, defendant claimed that the admission of a portion of a psychiatric report to show his future dangerousness violated <i>Estelle</i>. In an opinion written by Justice O'Conner, the Supreme Court held that under <i>Williams v. Taylor</i>, 529 U.S. 362 (2000) the admission of the evidence was not "contrary to" or an "unreasonable application" of Supreme Court precedent, as required by 28 U.S.C. � 2254(d)(1). The court found that the differences between this case and <i>Estelle</i> were substantial, and it therefore could not be said that it was objectively unreasonable for the Texas court to uphold the admission of the evidence. Moreover, there was considerable doubt that the evidence had any substantive or injurious effect on the jury's verdict.id: 16353
Minor had a statutory right not to testify at the proceedings to extend his juvenile commitment.The prosecution sought to extend the minor's commitment in the juvenile facility for two years pursuant to Welfare and Institution's Code section 1800 et seq. Contrary to the minor's claim the Fifth Amendment privilege against self-incrimination did not apply in these proceedings which are civil in nature. However, section 1801.5 afforded him the right not to testify because it expressly extends to juveniles facing commitment all rights guaranteed under the federal and state constitutions in criminal proceedings.id: 19990
The trial court did not compel defendant to testify out of order at the penalty phase.A defense witness was scheduled to testify on Friday, but was only available in the morning, although he would have been available again on Monday to finish his testimony. The court asked if defendant had decided to testify, and thereafter defendant testified on Friday afternoon. The court did not violate defendant's right to make a fully informed decision to testify at the close of his case. First, the right may not be available at the penalty phase. Next, the court merely exercised its discretion to regulate the order of proof.id: 19642
A search warrant affidavit that relied on facts taken from firearms records defendant was required to keep did not result in a violation of the privilege against self-incrimination.Defendant was convicted of unlawfully possessing firearms. He
argued that including in the affidavit for the search warrant information from records his federal firearms license required him to keep and from an inspection he was required to submit to under federal firearms laws was a violation of his privilege against self-incrimination. However, there was no Fifth Amendment violation and the search warrant properly incorporated facts derived from the firearm records the defendant was required to keep under federal law.id: 19408
There was no equal protection violation in finding the privilege against self-incrimination does not apply to MDO defendants since it does not apply to other civil committeesDefendant argued the right not to testify should be extended to
those facing a mentally disordered offender trial (Penal Code section 2970) based on the constitutional guarantee of equal protection. However, the Legislature in enacting section
1026.5(b)(7) and Welfare and Institutions Code section 1801.5 did not intend to require that persons subject to commitment under those provisions have the right not to testify. That being
the case, there is no disparate treatment in not affording that right to MDO committees, and there is not equal protection violation.id: 18970
Prop 115 discovery provisions do not prohibit compelled prosecution mental examinations.A criminal defendant may be required to submit to an
examination by a prosecution expert upon request when he places his mental condition at issue. This compelled examination is not a form of discovery prohibited by the criminal discovery
statutes.id: 18969
The prosecutor's questions and argument regarding defendant's refusal to make a statement were a fair response to his testimony that he was never given a chance to tell his side of the story.Defendant testified that he was never given an opportunity to tell his side of the story. The prosecutor thereafter questioned defendant about his refusal to make a statement when given the chance by police. The prosecutor's questioning and later argument to the jury was not an improper comment on defendant's invocation of his right to remain silent. Rather, it was a fair response to defendant's claim that he was never given a chance to tell his side of the story. Moreover, the court's instruction that defendant's exercise of his right could not be used to infer guilt could have included an admonition that the exercise of his right could not be used to draw an inference as to his credibility, but the instruction given was adequate. Even if there was an error it was harmless in light of the overwhelming evidence of guilt.id: 18863
Because the court retreated from its initial directive that defendant testify first or not at all, the court did not improperly burden his right against self-incrimination.Defendant argued the trial court erred by requiring that he either be the first defense witness or not testify at all. However, the court reconsidered its original ruling. Moreover, there was no reason to put defendant on the stand after his alibi witness testified. Because the court retreated from its original directive that defendant testify first or not at all, there was no violation of defendant's right against self-incrimination.id: 18815
Defendant's failure to object to the court's decision to allow the witness to assert his Fifth Amendment privilege waived the issue on appeal.A witness against defendant admitted at the preliminary hearing that he initially lied to police about the identity of defendant's accomplice. Before trial, defense counsel suggested the court should appoint counsel for the witness to advise him on whether to assert the privilege against self-incrimination. The court did so and the witness asserted the privilege. The prosecutor refused to grant immunity and the court later admitted his preliminary hearing testimony. The issue of whether the court erred in permitting the witness to assert the privilege was not cognizable on appeal where defense counsel failed to object to the court's decision to allow the witness to assert the privilege.id: 18641
The test to determine whether a witness's assertion of the privilege against self-incrimination is proper is whether his statement could incriminate him, not whether it is likely that he would be prosecuted.The Court of Appeal held the trial court erred in permitting the witness to assert his privilege against self-incrimination, and thereafter admitting his preliminary hearing testimony. Reviewing the issue independently, the Supreme Court disagreed. Contrary to the appellate court's finding, the test is whether the statement might tend to incriminate, not whether it might tend to lead to a prosecution. The appellate court also found that "lying to the police" is not a crime and therefore the witness had no real exposure. However, a false report may obstruct justice under Penal Code section 148 and may implicate section 148.5.id: 18642
Defendant could not validly assert his Fifth Amendment privilege when questioned about the Orange County offenses since he testified he did not intend to kill the present victim "or anybody else."Defendant argued the court erred by permitting cross-examination concerning the Orange County offenses because no evidence had been admitted against him and he did not testify as to the event. However, the defendant opened the door to such questioning by testifying he never intended to kill the present victim "or anybody else." His purported assertion of the privilege against self-incrimination was therefore ineffective, and the court did not commit Griffin error by explaining to the jury the meaning of defendant's assertion of the privilege.id: 18058
A court has no duty to instruct that a person's failure to testify was due to his or her invocation of the privilege against self-incrimination.The trial court did not err in refusing to instruct the jury as to a witness's invocation of his Fifth Amendment privilege or the prosecutor's sole authority to grant immunity.id: 17981
The Prop 21 gang registration provision that defendant give "any information" to authorities is constitutional if construed to mean any routine booking information.The minor challenged the Prop 21 requirement that those registered as gang members provide law enforcement with a "written statement... giving any information that may be required by the law enforcement agency." The provision does not violate the minor's privilege against self-incrimination if it is construed only to require routine booking information. Moreover, if so construed, the requirement to respond to routine booking questions does not violate defendant's rights to free speech or association, and does not violate defendant's right to privacy. In re Jorge G., ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2004 D.A.R. 4564 (5th Dist. 2004) April 13, 2004. <$!IIn re Jorge G., ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2004 D.A.R. 4564 (5th Dist. 2004) April 13, 2004.>id: 17830
Trial court need not advise a self-represented defendant of the privilege against self-incrimination before testifying.A trial court is not required to advise a self-represented defendant of the privilege against self-incrimination. The so-called Kilpatrick-Kramer rule stating otherwise is invalid. However, the trial court remains free to provide such an advisement, so long as its words do not stray from neutrality toward favoring any one option over another.id: 17239
Requiring the defense to turn over unredacted psychiatric reports prior to the doctor's penalty phase testimony did not violate the privilege against self incrimination.The trial court did not err by ordering the defense to provide the prosecutor with unredacted copies of psychiatric reports prior to the testimony of the court-appointed psychiatrist at the penalty phase. The ruling did not violate the privilege against self-incrimination, the work product rule or the attorney-client privilege. By injecting his mental state as an issue, and calling the expert to testify, defendant waived any challenge to the contents of the interviews.id: 17244
Gang registration requirement that defendant disclose his "monikers" did not infringe his privilege against self-incrimination.Defendant pled guilty to a gang related offense and was thereafter subject to the gang registration requirements of Prop 21. He argued the requirement that he list his "moniker" infringed his Fifth Amendment right to remain silent because it demanded that he admit his association with a gang. However, just as routine booking information concerning a person's identity and address is not incriminatory, neither is the limited disclosure contemplated by the registration requirement.id: 17192
An accused has no Fifth Amendment right to refuse to a competency exam by a prosecution expert and no right to counsel at the examination.An accused person cannot on the basis of the Fifth Amendment refuse to submit to a mental examination by a prosecution expert when properly ordered to do so in connection with a Penal Code section 1368 hearing. The Fifth Amendment does not apply because a judicially declared rule of immunity protects the accused from the use of any information gathered. Moreover, the Sixth Amendment does not require that an accused be accompanied by counsel at a mental examination in connection with a competency proceeding.id: 16895
Trial court properly struck defense witness' entire testimony where he invoked the Fifth Amendment as to certain questions since there would have been no opportunity for a proper cross-examination.Defendant was convicted of drug and weapon related charges. A passenger in his car (Ronald Johnson) was called as a defense witness. Johnson had earlier pled guilty to a drug offense and the firearm charge was dismissed. When asked if he placed the gun between the two front seats, Johnson invoked his privilege against self-incrimination. His counsel advised him that he could still be prosecuted for the gun charge and that he should not answer unless he was granted immunity on the gun charge. The prosecutor stated that would be no immunity. The trial court did not err in ordering Johnson's entire testimony stricken since the refusal to answer certain questions would deprive the prosecution of proper cross-examination.id: 16437
Requiring driver in accident to identify himself as such to police did not violate the privilege against self-incrimination.Vehicle Code sections 20001 and 20003 require that a driver involved in an inquiry producing accident identify himself as the driver, when that is not reasonably apparent. Requiring the driver to inform the investigating officers that he was the driver does not violate the driver's constitutional right against self-incrimination.id: 15970
Privilege against self-incrimination does not bar prosecution from questioning an alleged MDO about his mental state at a Penal Code section 2972 hearing.The privilege against self-incrimination does not bar the prosecution from questioning an alleged mentally disordered offender about his mental state at a Penal Code section 2972 hearing. The extended commitment hearing under section 2972 is not punitive, and therefore the defendant did not have an absolute right to refuse to testify.id: 15781
Having defendant testify about her actions and mental condition at the MDO hearing did not violate her right against self-incrimination.At the hearing to determine whether defendant was a mentally disordered offender (Penal Code section 2960 et seq.) having the defendant testify about her actions and mental condition during the underlying offense did not violate her federal or state rights against self-incrimination.id: 15731
Prosecutor at an SVP trial may call the defendant as a witness.Defendant argued the trial court denied his the constitutional right to remain silent when it permitted the prosecutor to call him as a witness at his Sexually Violent Predator trial. His argument focused on the fact that his trial testimony must have seemed implausible and reduced his credibility with the jury. However, the SVP trial was not a criminal proceeding within the meaning of the Fifth Amendment's privilege against self-incrimination. Moreover, that defendant's credibility might have been questioned by the jury was not the fault of the procedure established by the SVPA.id: 15736
Court properly allowed defendant to be cross-examined with statements she made to psychologists in anticipation of a juvenile court fitness hearing.Defendant argued the court committed reversible error in allowing her to be cross-examined with statements she made to mental health professional in anticipation of a juvenile court fitness hearing. She argued the doctrine of use immunity should apply to preclude testimony given at a juvenile court fitness hearing from being used, both as substantive evidence and impeachment, in a subsequent criminal trial. The court properly excluded any statements the minor made to the probation officer. However, the statements made to the psychologists were neither judicially nor legislatively compelled. Although the minor's testimony in the form of statements voluntarily made to psychologists could not later be used as substantive evidence of her guilt at trial, they were admissible once she elected to testify inconsistently with those prior statements.id: 12742
Court properly excluded defense investigator's testimony regarding an interview with defense witnesses who invoked the privilege against self-incrimination and due process did not require the application of a hearsay exception.Two defense witnesses invoked their privilege against self-incrimination prior to testifying about their ingestion of drugs with defendant prior to the killings. Defendant argued the court erred in denying the request to call the defense investigator to testify as to what the witnesses had told him. Contrary to defendant's claim due process did not require the application of an exception to the hearsay rule. Moreover, defendant's claim the testimony was admissible as statements against penal interest was waived for the failure to raise it earlier. Counsel was not ineffective for failing to raise the issue as the record did not show he would have prevailed since nothing established the trustworthiness of the statements and defendant failed to show the loss of evidence prejudicial to his guilt trial.id: 12743
Court was not required to inform the jury regarding the witness' refusal to testify.The prosecution refused to grant immunity to defendant's brother who asserted his privilege against self-incrimination outside the presence of the jury. The trial court was not required to inform the jury of the witness' refusal to testify or compel the witness to claim the privilege against self-incrimination in the jury's presence.id: 12744
Defendant's right to confrontation did not supersede the witness' privilege against self-incrimination.Defendant argued his constitutional right to confront witnesses against him was violated because he was not allowed to cross-examine a witness (who had invoked his privilege against self-incrimination) regarding extrajudicial statements that were admitted into evidence. However, defendant's right to confront witnesses against him did not supersede the witness' constitutional right against self-incrimination.id: 12745
Expert opinion of altered or disguised handwriting exemplar did not violate the privilege against self-incrimination.Defendant was charged with forgery and fraudulent use of a credit access card. He provided handwriting exemplars pursuant to court order. Before expert testimony concerning the exemplars was introduced, he objected to the introduction of evidence that altered or disguised his handwriting on the exemplars on the basis that it would violate his privilege against self-incrimination. However, since a defendant has no privilege to refuse to provide a court-ordered handwriting exemplar, his or her attempts to alter or disguise this physical characteristic is admissible evidence of consciousness of guilt. The Fifth Amendment privilege against self-incrimination is not implicated by the admission of such expert opinion testimony.id: 12746
Family court judge had no duty to advise a witness of his Fifth Amendment rights before he testified.Defendant argued the evidence of his false testimony during a family court proceeding should have been excluded from evidence in his perjury trial because of the failure of the family court to warn defendant at that time of his rights against self-incrimination as established by the state and federal constitutions. However, the family law judge had no duty to warn defendant of such rights at that hearing.id: 12747
Parent cannot invoke the Fifth Amendment to evade a court order to reveal the location of child.Although the mother was suspected of abusing her year-old son, a social services agency returned the boy to her under a court order for protective supervision. The boy disappeared and the court ordered the mother jailed for civil contempt until she revealed the boy's whereabouts. In a 7-2 decision written by Justice O'Connor, the Supreme Court upheld the contempt order ruling that the mother may not invoke the Fifth Amendment privilege against self incrimination to resist the production order, because she has assumed custodial duties relating to production, and because production is required as part of a noncriminal regulatory regime. The majority suggested however, that there may be limits on the government's ability to use the act of the child's production in any subsequent criminal proceedings: The same custodial role that limited the ability to resist the production order may give rise to corresponding limitations upon direct and indirect use of that testimony. Justices Marshall and Brennan dissented.id: 12749
The witness' attorney was authorized to invoke the privilege against self-incrimination on behalf of his client.Defendant argued the trial court erred in finding the defense witness had invoked her privilege against self-incrimination. The witness was advised of her privilege and counsel was appointed for the purpose of protecting that right. She was present in court, sworn and on the stand when counsel expressly invoked the privilege on her behalf. She made no gesture or other indication of disapproval. Her attorney was authorized to make the statement on her behalf and it was not necessary that she repeat the invocation. Moreover, because the witness answered some non-incriminating questions, she did not thereby waive her right to assert the Fifth Amendment privilege.id: 12752
Trial court did not err in refusing to require a witness to invoke his privilege against self-incrimination in the presence of the jury.Defendant argued the trial court erred by denying his motion to require a witness, who refused to answer questions at an in limine hearing, to invoke his privilege against self-incrimination in the presence of the jury. However, requiring the witness to invoke the privilege in the jury's presence would have served no purpose and was not required.id: 12753
Trial court did not err in failing to inform defendant of his right to testify and in obtaining an express waiver of that right.The trial court did not err in failing to sua sponte inform the defendant at trial of his right to testify and to obtain an express personal waiver of that right. The trial court may safely assume that a defendant who is ably represented and does not testify, is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel's trial strategy.id: 12754
Witness' invocation of the Fifth Amendment privilege did not significantly compromise defendant's right to confront the witness.During trial, an accomplice testifying for the prosecution was charged with committing two felonies. On cross-examination defense counsel sought to impeach him regarding the recent charges. The witness asserted the Fifth Amendment and refused to answer any questions. Defendant argued the witness' silence violated his right to confront witnesses under the Sixth Amendment. However, defendant had an adequate opportunity to inform the jury of the charges pending against the witness, and his Sixth Amendment right to confront the witness was not significantly compromised by the witness' refusal to answer questions regarding the charges pending against him.id: 12757
Witnesses' invocation of the privilege against self-incrimination was not the result of counsel's incompetence or prosecutorial intimidation.Defendant argued two defense witnesses would have testified as to his intoxication and unconsciousness at the time of the crime had not incompetence of counsel and prosecutorial intimidation caused them to invoke their privilege against self-incrimination. Counsel was not incompetent in failing to secure the admission of testimony of the witnesses as to defendant's drug use prior to the crime as opposed to during the crime because the answers to such questions may have implicated the witnesses in some criminal activity and they may have asserted their Fifth Amendment rights. Moreover, the prosecutor did not cause willing witnesses to refuse to testify as the record made clear that the court, not the prosecutor, was the moving force in raising the issue of possible self-incrimination.id: 12758
A convicted defendant retains his Fifth Amendment privilege as to subsequent proceedings against other defendants until the expiration of the time to file an appeal.Defendant and Ramirez were arrested or selling cocaine to undercover officers. Ramirez pled guilty. Defendant called Ramirez to the stand as a defense witness expecting him to testify that defendant had nothing to do with the sale. The court then appointed counsel for Ramirez who then invoked his Fifth Amendment privilege against self-incrimination. Defendant argued Ramirez' guilty plea and sentencing had terminated his Fifth Amendment privilege. However, a convicted defendant retains his Fifth Amendment privilege as to subsequent proceedings against other defendants at least until the time he no longer retains the right to file a timely notice of appeal.id: 12733
Admitting evidence of defendant's refusal to stand in a lineup did not violate his privilege against self-incrimination.Defendant argued that admitting evidence of his refusal to stand in a lineup violated his privilege against self-incrimination. However, a defendant's appearance in a lineup is nontestimonial, physical evidence, and is not protected by the privilege. Moreover, since defendant's refusal to participate in the lineup supported an inference of consciousness of guilt the court did not err in instructing with CALJIC 2.06.id: 12734
Counsel's opening statement did not coerce the defendant into testifying.Defendant argued that counsel's actions in informing the jury during opening statement that defendant would testify denied him the right not to testify at his trial. However, it was only after defendant told counsel of his desire to testify that counsel told the jury. It was an appropriate tactical decision. Although the decision made it more difficult for defendant to reconsider his decision to testify, it did not unfairly coerce him or deprive him of his right to decide whether to testify.id: 12737
Court did not err in denying defendant's request that the third party assert the privilege against self-incrimination in front of the jury.At the penalty phase the defense claimed that White, rather that defendant, murdered the victim, and the defense called White as a witness. Outside the jury's presence, White asserted the privilege against self-incrimination as to questions regarding the shooting. The court denied defendant's request that White assert the privilege in front of the jury. White asserted the privilege in front of the jury when asked if he was at the party at which the victim was killed. On appeal, defendant argued the court's ruling was erroneous. It was not. No inference may properly be drawn from the invocation of a privilege. Defendant also argued the court had a sua sponte duty to instruct that White had invoked the privilege. However, the instruction is only required when requested by a party.id: 12738
Court did not err in finding witness unavailable after he invoked the privilege against self-incrimination.The prosecution intended to call defendant's brother as a witness at trial. After conferring with counsel, the brother decided to assert his privilege against self-incrimination. The trial court then found he was unavailable as a witness and permitted his preliminary hearing testimony to be introduced. Defendant argued the court erred in finding his brother unavailable as a witness because he did not establish that he was entitled to invoke the privilege. However, the privilege is properly invoked when a witness' answers would furnish a link in the chain of evidence needed to prosecute the witness for a crime. Here, it did not clearly appear the testimony could not have incriminated the witness had he been taken into custody on the offense. Moreover, because he had testified at the preliminary hearing, he could properly invoke the privilege to avoid exposing himself to a charge of perjury in that proceeding.id: 12739
Court did not err in refusing to compel a witness to invoke the privilege against self-incrimination in front of the jury.Defendant subpoenaed his confederate (whose trial was severed) to testify at the guilt phase. At a hearing outside the jury's presence, she refused to respond asserting her Fifth Amendment privilege against self-incrimination. The trial court denied defendant's request to compel the witness to invoke the privilege in front of the jury. Defendant's request was in direct violation of Evidence Code section 913, which prohibits the trial court and counsel from commenting on a witness' assertion of a privilege. The court's refusal to do so was therefore proper and section 9213 did not infringe upon his constitutional rights to due process and to present a defense.id: 12740
Court did not violate the right to present a defense for failing to grant witnesses immunity for drug offenses where the witnesses may have faced liability for the murders.Defendant claimed two defense witnesses would have testified as to his state of mind at the time of the killings but decided to invoke their privilege against self-incrimination. He argued the trial court should have extended the witnesses judicial immunity for any potential drug offenses in order to vindicate defendant's right to present a defense. However, the record showed immunity for drug offenses would not have sufficed to procure the testimony of the witnesses who faced a danger the testimony might lead to charges of accomplice liability for the murders of which defendant was accused. It was unlikely immunity would be granted for one potentially involved in a double murder.id: 12741
Trial court did not violate the presumption of innocence or the privilege against self-incrimination by ordering the defendant to shave his beard during trial.Witnesses described the perpetrator as clean shaven. Before the evidence portion of the trial, the prosecution moved to compel defendant to shave his beard. The beard was then shaved after the court order. The court order did not violate the presumption of innocence or the privilege against self-incrimination as the prosecution still had to prove defendant was the gunman.id: 12229
Court did not err in excluding defense from an in camera hearing where a witness would give reasons for asserting his privilege against self-incrimination.Defendant subpoenaed his co-participant in the crimes to testify in his behalf. Counsel for the witness told the court his client would be asserting his privilege against self-incrimination and offered to explain his reasons for doing so to the court. Defendant objected to the subsequent in camera hearing at which counsel and defendant were excluded. However, there was no error in excluding the defendant and counsel because under Evidence Code section 915, subdivision (a) the court had the authority to uphold the potential witness' claim of privilege without holding the hearing.id: 12201
Court did not abuse its discretion in denying the requested continuance based on the witness's invocation of the privilege against self-incrimination where it was not likely he would testify in appellant's trial after his own sentencing.Appellant called Henry Gonzales as a defense witness at trial. Gonzales declined to answer questions by invoking his privilege against self-incrimination. Defense counsel then requested a continuance of the trial until after Gonzales had been sentenced in his criminal trial. He claimed the court erred in denying the motion. However, there was no guarantee that Gonzalez would not continue to invoke the privilege during the pendency of the appeal. Moreover, Gonzales' attorney indicated he would attempt to continue his client's sentencing as long as necessary so that it would take place after the conclusion of appellant's trial. The court did not abuse its discretion in denying the requested continuance.id: 11930
Proposition 115 reciprocal discovery provision does not violate the federal privilege against self-incrimination.Appellant argued the Proposition 115 reciprocal discovery provisions embodied in Penal Code section 1054.3 violates the federal privilege against self-incrimination because it compels pre-trial disclosure of defense witnesses and their statements. However, the Fifth Amendment is not implicated by pretrial discovery of witness' statements that give both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial.id: 11872
Proposition 115 reciprocal discovery provision does not violate the privilege against self-incrimination as outlined in the California Constitution.Prosecutorial discovery as provided for in Proposition 115 is not violative of the California Constitution. Article I, section 30, subdivision (c), mandates reciprocal discovery in criminal cases. By its very terms, the new constitutional provision requires both defense and prosecution discovery. This interpretation of the new constitutional provision does not conflict with the privilege against self-incrimination contained in Article I, section 15. The new constitutional provision directly addresses the issues of discovery while Article I, section 15 does not. The amendment initiates the line of cases holding that prosecutorial discovery violates the privilege against self-incriminationid: 11873
Proposition 115 reciprocal discovery provisions provided a specific exception to the broad privilege against self-incrimination found in the state constitution.Defendant argued the reciprocal discovery provisions of Proposition 115 violate the privilege against self-incrimination under the California Constitution (Article I, section 15). However, the newly enacted Article I, section 30(c) constitutes a specific exception to the broad privilege against self-incrimination set forth in Article I, section 15.id: 11874
Proposition 115 requirement that the defense disclose before trial any statements of the witnesses it intends to call at trial does not violate the privilege against self-incrimination.Defendant argued the Penal Code section 1054.3 requirement that the defense disclose before trial any statements of the witnesses it intends to call at trial violates the privilege against self-incrimination of the federal constitution. However, the statements of the witnesses that the defense intends to call at trial are not personal to the defendant, and therefore compelled discovery of such statements does not implicate the self-incrimination clause.id: 11875
Proposition 115 requirement that the defense disclose the names and addresses of all witnesses it intends to call at trial did not violate the privilege against self-incrimination.Defendant argued that the requirement under Penal Code section 1054.3 that the defense must disclose to the prosecution the names and addresses of all witnesses it intends to call at trial, rather than merely its alibi witnesses, violates the privilege against self-incrimination under the federal constitution. However, the provision merely forces the defendant to divulge at an earlier date information that the defendant from the beginning planned to divulge at trial. Such discovery does not constitute compelled self-incrimination and therefore does not implicate the privilege.id: 11876
Trial court's furnishing inculpatory writings to the prosecutor did not violate defendant's privilege against self-incrimination or the reciprocal discovery statutes.Defense counsel delivered inculpatory writings to the trial court, under seal. The trial court then furnished the writings to the prosecutor. Because defendant voluntarily created the subject writings and the prosecutor obtained them from the trial court rather than defendant, there was no violation of defendant's privilege against self-incrimination. Moreover, the court's delivery of the writings to the prosecutor did not violate the reciprocal discovery statutes. Contrary to defendant's claim the voluntarily created writings do not constitute compelled testimony which is not authorized by Penal Code section 1054.4.id: 11894
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245