23 January 2008

The 5th:
Nemo tenetur seipsum accusare.

Okay, so last week I laid out a fairly typical conversation in which a witness is reluctant for the some of the more common reasons that witnesses become reluctant to testify. So what is Prosecutor going to do now?

Theory: First, let's look at some of the theory behind the 5th Amendment and testimony in general. The clause which pertains to all this is "No person . . . shall be compelled in any criminal case to be a witness against himself." This is an affirmation of the adversarial judicial system we lifted off the British and a rejection of the inquisitorial system, under which the defendant was traditionally required to confess. We have carried this beyond star chambers and ecclesiastical courts; we extend it to any time a law enforcement agent has someone in a situation where a reasonable person would feel free to leave.

On the other hand, a person cannot invoke the 5th in order to avoid breaking the law. Specifically, a witness cannot invoke the 5th in order to keep from committing perjury. She also cannot take the 5th because she does not want to testify or any reason except that what she would say would incriminate her. Any attorney appointed to or hired by her would be unable to advise her to take the 5th except in a case where it would incriminate her because were he to do otherwise he would be in breach of his ethical requirement, as an officer of the court, not to perpetrate a fraud on the court.

Reality: An extra-constitutional invocation of the 5th Amendment looks exactly the same as a valid invocation of the 5th Amendment. If the witness is smart enough to figure this out on her own, or even just bull-headed ("I seen it on TV. I don't have to testify no matter what.") she can game the system.

Possible Prosecutor Reactions: Going back to the last post, Jane has just told Prosecutor that she is going to invoke the 5th amendment. What can poor helpless Prosecutor do?

1) The Lecture - "YOU. CANNOT. TAKE. THE. 5TH. JUST. BECAUSE. YOU DO. NOT. WANT. TO. TESTIFY. That man beat you. I won't drop charges when a man chokes and beats someone. I'm going to call you and you should tell the truth."

Any number of times that will be all that is necessary. Often, shortly after she has returned and told boyfriend the prosecutor's going to call her, even though she doesn't want to testify, he'll send Defense Counsel over to actually finalize the plea. However, for our example we'll assume that doesn't happen and she does take the 5th when called.

2) Try the case without her. This can be difficult, although not as hard as it used to be. It has been my experience that a lot of deputies/officers have started carrying inexpensive digital cameras and taking pictures of domestics - not all of them, but it seems to be spreading. Prosecutor can show the picture, put forth any statement by Defendant, and maybe even play the 911 tape of Jane calling for help. If Jane testifies for Defendant the prosecutor even has built in, and fairly devastating impeachment evidence from her statement to the police that night.

However, in the facts I put forth Defendant made no statement and, unless he knew there was going to be trouble ahead of time, Prosecutor probably won't have the 911 tape. So, that leaves option 3.

3) Give Jane use immunity (or actually what Virginia cases call "use derivative immunity"). Ask the judge to instruct Jane that, "Use immunity means that nothing that you say today and no evidence that is developed from what you say can be used in a trial against you. There is only one exception to this. Immunity does not protect you if you commit perjury. Once you have been granted immunity you cannot invoke your 5th Amendment right and you must now testify to the best of your knowledge and ability." Then require her to testify.

This is the most likely outcome. Why use "use immunity?" Lets assume Jane tells the new story to the judge and remember she made inculpatory statements to the prosecutor. She has either made a false report to an officer or committed perjury. If the new story is a true then the report to the police on the night of the incident is a lie. This is a "Making a False Statement" misdemeanor. If the new story is a lie and the report to the police is true then she has committed perjury, a felony. If Prosecutor has given her transactional immunity he's going to face an argument that she can't be prosecuted for her actions on that night.1 This paints him into the a corner which requires him to charge Jane with the felony.

Or, if you want to view this from the perspective of a totally unsympathetic, hard core prosecutor, it gives Prosecutor the option of indicting her on both charges and letting a jury figure out which one it will convict her on.

1 I say "an argument" because the counter argument would be that she was not a "transactor" but a victim in the thing about which she is testifying. The report to the police is collateral and post-event. And before anyone screams at me, no, I have not looked at case law relevant to this argument - it just hit me as I was typing.


Mark Bennett said...

Yep. You nailed it. Except . . .

Let's say Jane gets use immunity, and truthfully testifies that she lied when she talked to the police. How are you going to convict Jane of making a false report, when the only evidence that the report was false is her testimony to that fact provided subject to use immunity?

Anonymous said...

Don't forget my personal favorite hearsay exception: Excited Utterance.

I have won a Domestic Battery on nothing more than the recanting victim's excited utterances (introduced through my LEOs) and the fact that the LEOs saw some blood on the kitchen floor. The jury didn't buy the argument that the blood was either spagetti sauce or blood from a menstrating pitbull- I'm not making this up...

NorFork Doug said...

It seems to me that this is an example of the short-sightedness of prosecutors. You are more concerned with getting the conviction than you are about the actual impact of your actions.

Why do you think that this victim does not want to testify in the domestic violence situation? This person needs help that comes in forms other than prosecution. This victim is most likely going to be involved with the defendant in the future and is concerned about how their actions will affect that relationship. They may have a child in common or family and friends.

On the one hand by forcing testimony from them against their will, you have put them further into the line of fire. Can we assume for a second that they understand the dangers of their life more than a prosecutor does? There must be some reason that they don't want to testify and those reasons might be valid and better serve societal interests as well as their own rather than trying to punish the defendant. For instance, the prosecution might stand in the way of a successful non-violent reconciliation. You need to figure out what those reasons are before deciding that the unwillingness to testify is unreasonable.

But what I see as an even greater problem with your post is that you have not expressed any hesitation about turning a victim into an offender. If we assume that the defendant is actually guilty of the crime charged, then you can see that you are willing to exchange the actual guilty party for an innocent victim in order to get some type of conviction and not walk away empty handed. I ask you, which is better for society: Actual guilty party is acquited but victim is turned into a criminal and punished instead of defendant; or victim is not forced to testify and does not committ a crime and defendant is still not convicted. Since you can't get a conviction against the right person, do we serve any interest in getting a conviction against someone who was actually a victim? Which of those scenarios do you think is more likely to make the victim feel safe in the future about reporting abuse to the authorities?

These cases are more than just a case file that landed on your desk and a prosecutor's job is to do more than just keep score of their conviction rates.

Mark Bennett said...


I don't think "excited utterance" is still an exception to the confrontation clause post Crawford.


What you say is generally true, but none of it should be the least bit surprising. When Jane told the police that Joe had hit her, she forfeited their right to resolve the situation like grownups.

The job of the police is not to just get Bob out of the house till he cools down and tells Jane he loves her. If that were their job, they'd be out at Jane and Bob's every night. The government is not a family counseling service.

Anonymous said...

I don't know how things are handled in your neck of the woods, but from where I sit (a defense lawyer who does not do a lot of these cases), the is paternalistic mentality on the part of many prosecutors in domestic cases that results in belittling, criminalizing and exploiting women, especially poor women who are too used to submitting to authority and who do not retain counsel to represent themselves.
There are certainly many real domestic violence cases that deserve to be prosecuted in then name of the State, regardless of the victim's wishes. That's why I started off saying that I don't know what the practice is in your county or State. But there are also cases which result in mandatory arrests (probably a good idea) in which the parties want simply to get back together. In these cases, the government goes far to far in making the personal political and in breaking up families.
If neither victim nor defendant want the government's help, and if the offense does not rise to a certain level, what is the government's interest in inserting itself into their affairs.

Anonymous said...

You're absolutely right. In the case I was referring to, the Victim was called to testify and stated that the Defendant did not hit her and her visible injuries were caused by a fight with another female a few days prior.

Since the source of the Excited Utterances testified and was subject to Cross-X, there were no Crawford issues.

Donte Russo said...

I have seen many times were one of the parties in a alleged domestic violence case , called the police to get even or to assert authority, this happens with both men and woman. Latter on they figure out they were being over reactive and when it comes to trial the prosecution will do its best to find some one guilty. In my opinion there is no state interest and this crap about “The victim may be too afraid to prosecute” is just a way the state is invading the private lives of people.

This law is being abused by the police all the time. When I was a police officer and they passed this law, we as police, were not in favor of it because it did not give us the opportunity to fairly handle the situation. Many times an officer could separate the parties, and let them cool down. I used to explain that each person had a valid point then ask would you really want to see Jane or John go to jail. Then I would suggest to them, that they think about it over night and if they still felt that way they could speak to a magistrate. This worked well there would be no more incidents and many times the people would later thank us and seam to work things out without fighting etc.

I know there is some srious situations with some domestic calls, but they are not all the same and it is not right to assume some one is an “Abuser” like it is done today. There are some domestic violence personnel who will immediately tell the female, you don’t need him in your life, he’s dangerous, he’s controlling etc. They home in on these situations for their own agendas and try and break people up. In most cases it does not work and they only make people’s lives miserable. The police do not need to arrest anyone on some allegation by an upset person. This law is being abused in many areas of the state and it is destroying lives not helping. Many times one or both persons are drinking and not thinking rationally anyway. The police get tired of dealing with it so they arrest. This is not right and it is the job of police to act as an arbitrator sometimes, it is part of good policing and building trust in the community. I guess this is way now the police have no respect in most communities and arrest because their pissed off. Is this justice?

zerin hood said...


Exactly. The shall arrest statute is not the best idea. Law enforcement on the scene should be able to exercise some discretion. In our jurisdiction, it is most often handled at the scene so typically our office doesn't see it unless it is egregious or repetitive.

I think you mischaracterize. I don't any prosecutor who keeps track of convictions and has to see someone convicted everytime there is a case. I think the idea is trying to protect the abused from the abuser and to get at the truth, whatever it may be.