Is it improper to require a witness to invoke their Fifth Amendment privilege before a jury?

California, United States of America


The following excerpt is from People v. Escobar, B260324 (Cal. App. 2016):

"When a 'court determines a witness has a valid Fifth Amendment right not to testify, it is . . . improper to require him [or her] to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. . . . But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.' " (People v. Morgain (2009) 177 Cal.App.4th 454, 466 (Morgain).)

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