Herndon v. Herndon and Pleading the Fifth

[Author’s note: The North Carolina Supreme Court in Herndon v. Herndon, 368 N.C. 826 (2016), reversed the court of appeals’ decision discussed below. The state supreme court held that the trial court’s actions did not amount to a constitutional violation. The court concluded that the defendant did not invoke the privilege against self-incrimination and the trial court inquired into matters that were within the scope of the defendant’s testimony on direct examination.]

A recent court of appeals decision has stirred up a lot of discussion on our hall about the scope of the Fifth Amendment right to be free from self-incrimination. The case is Herndon v. Herndon, __ N.C. App. __ (October 6, 2015), and it arose from a defendant’s appeal from the entry of a domestic violence protective order against her.  Before the defendant testified in the hearing to determine whether acts of domestic violence occurred, the presiding judge cautioned the defendant’s attorney:  “I’m not doing no Fifth Amendment.”  There’s really no question that the warning was, as one appellate judge put it, “less than artful,” but did it violate the defendant’s rights?

Read more