Is it improper to require a witness to invoke the Fifth Amendment privilege against selfincrimination in front of the jury?

California, United States of America


The following excerpt is from The People v. Garcia, E048866, No. FSB056399 (Cal. App. 2010):

If a witness has the right to invoke the Fifth Amendment privilege against selfincrimination, it is improper to require the witness to invoke that privilege in front of the jury because there is too great a risk that jurors will make inferences about the reason for the invocation which are damaging to the defense. (People v. Mincey (1992) 2 Cal.4th 408, 440-442.) However, where, as in this case, the court has determined that the witness has no privilege to refuse to testify, it is appropriate to allow the prosecutor to put the witness on the stand before the jury and have the witness refuse to testify or refuse to answer specific questions: Where the witness has no right to refuse to testify, the jury is entitled to draw a negative inference from the witness's refusal to do so. (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554; accord, People v. Morgain (2009) 177 Cal.App.4th 454, 466-468.) This procedure does not violate the confrontation clause. (People v. Morgain, supra, at pp. 463-466.)

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