Does a grant of discovery on a defendant's waiver of his Fifth Amendment privilege need to include cross-examination?

California, United States of America


The following excerpt is from People v. Andino, B253131 (Cal. App. 2015):

Andino argues "[he] knows of no case authority which conditions a grant of discovery on the defendant's waiver of his Fifth Amendment privilege . . . subjecting him to cross-examination at a pretrial motion." He cites Brooks v. Tennessee (1972) 406 U.S. 605, 611-612, to support the proposition that such a practice may be unconstitutional. Building on this Andino argues that his trial counsel performed below an objectively reasonable standard when he did not complain of the procedure imposed by the trial court and when he did not submit a declaration containing an offer of proof which could have been presented under seal. Andino also argues his new trial counsel was ineffective for not raising a claim that his trial counsel was ineffective.

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