Trial court did not abuse its discretion in denying defense request to call passenger of car in which drugs were found who was expected to assert his Fifth Amendment privilege against self-incrimination, in United States v. Branch, 537 F.3d 328 (4th Cir. Aug. 20, 2008) (No. 06-4257)
A recent case underscores the prejudicial concerns from calling a witness merely to assert the Fifth Amendment privilege against self-incrimination.
The defendant was driving a sedan with a passenger. The car was stopped for a traffic violation. Eventually, based on some suspicious factors, a canine unit was summoned which signaled the presence of drugs. Officers found cocaine base, a digital scale, baggies, and other items in the car. The defendant was arrested and drug and firearm charges were filed. At trial, the defense asked to call the passenger anticipating that he would assert his Fifth Amendment privilege against self-incrimination. The defense hoped to signal to the jury that the passenger was responsible for the drugs. The trial court disallowed the witness noting it “would lead to speculation and unfair prejudice.” Branch, 537 F.3d at 334. After his conviction, the defendant appealed the issue.
The circuit affirmed the exclusion of the witness. As the circuit explained, “placing [passenger] Johnson on the stand solely to invoke his Fifth Amendment privilege would lead to ‘unfair prejudice’ in the form of both unwarranted speculation by the jury and the government’s inability to cross-examine Johnson. And any inferences that the jury might have drawn from Johnson’s privilege assertion would have been only minimally probative — and likely improper — in any event.” Branch, 537 F.3d at 343.
The regular and recommended practice is for the trial court to hold a hearing outside the presence of the jury to determine the likelihood whether a particular witness will assert his Fifth Amendment privilege. As the Fourth Circuit noted in Branch, calling a witness for the purpose of displaying the assertion of a Fifth Amendment claim creates a host of problems. The jury may draw a prejudicial inference from the assertion of the privilege and the government is denied an opportunity to cross-examine the witness.
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