When will a court allow an objection on Fifth Amendment grounds?

California, United States of America


The following excerpt is from People v. Smith, 2d Crim. No. B278805 (Cal. App. 2018):

Appellant asserts that an objection on Fifth Amendment grounds was excused because it would have been futile. (See People v. Wilson (2008) 44 Cal.4th 758, 793 ["A litigant need not object . . . if doing so would be futile"].) Appellant argues that an objection would have been futile since "the trial court's advisement of [appellant's] rights to testify or not testify did not adequately state the law because it did not include the advisement that a defendant does not waive Fifth Amendment rights merely by taking the stand as a witness." Appellant's argument is illogical, unsupported by citation to the record or legal authority, and wrong on the law. (See People v. Saddler (1979) 24 Cal.3d 671, 679 ["a defendant who takes the stand and testifies in his behalf waives his Fifth Amendment privilege [citation] . . . to the extent of the scope of relevant cross-examination"].) Appellant has therefore not satisfied his burden of showing that an objection would have been futile. (See People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 25.)

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