Selective Assertion of the Fifth Amendment Privilege

Suppose that an eyewitness testifies for the state on direct examination that he saw the defendant snatch an old woman’s purse and run off. The defense cross-examines the witness about whether he’d used drugs shortly before the crime took place, hoping to show that the witness’s perception was impaired. If the witness asserts his Fifth Amendment privilege against self-incrimination, how should the court respond? Allowing the witness to assert the privilege unfairly limits the defendant’s right to confront and cross-examine the witness, but compelling the witness to answer unfairly requires the witness to incriminate himself.

Cases and commentators have suggested a variety of possible responses, including (1) permitting the witness to assert the privilege, (2) permitting the witness to assert the privilege, but striking some or all of the witness’s direct examination testimony in response, (3) permitting the witness to assert the privilege, but allowing the fact-finder to infer that the answer to the question would have been incriminating, and (4) requiring the witness to answer, on the theory that the witness waived the privilege by testifying on direct examination. The proper response may vary depending on whether the witness is also a party, e.g., the defendant, and on the nature of the question posed, e.g., whether the question relates to the facts of the case or only to the credibility of the witness. No single North Carolina case sets out a comprehensive approach to this issue, but we do have several relevant cases that provide some guidance.

A defendant who chooses to take the stand waives the privilege and may be compelled to answer relevant questions on cross-examination. Brown v. United States, 356 U.S. 148 (1958). The Brown Court held that a defendant who elects to take the stand is subject to cross-examination about matters “made relevant by her direct examination.” Id. at 154. The defendant’s decision to testify amounts to a Fifth Amendment waiver, and “the breadth of his waiver is determined by the scope of relevant cross-examination.” Id. at 154-55. Lesser remedies, such as striking the defendant’s testimony, also appear to be proper, in the court’s discretion. Id. at 156 n.5. However, the waiver is not limitless: it does not extend to collateral matters relevant only to credibility. For example, if a defendant on trial for assault were asked on cross-examination about an unrelated fraud he perpetrated – a specific instance of dishonest conduct about which a court may permit cross-examination under Rule 608(b) – he could assert his Fifth Amendment privilege. As Rule 608(b) makes clear, “[t]he giving of testimony, whether by an accused or by any other witness, does not operate as a waiver o the privilege against self-incrimination when examined with respect to matters which relate only to credibility.” Of course, whether a particular question is “made relevant by . . . direct examination” or “relate[s] only to credibility” may be a difficult issue in some instances, but the basic legal principles are fairly clear.

Under Brown, a non-party witness does not waive the privilege by testifying, at least if he or she is compelled to do so. (Whether a non-party witness who testifies without being subpoenaed waives his privilege by testifying is not clear from Brown.) Therefore, such a witness may not be compelled to provide incriminating answers on cross examination. However, if the cross examination concerns a non-collateral matter, his direct examination testimony may be stricken as a result of his assertion of the privilege; this is a matter of fairness to the opposing party, which is otherwise deprived of the right to cross examine. State v. Ray, 336 N.C. 463 (1994). If the witness asserts the privilege in connection with a collateral matter relevant only to credibility, Ray appears to say that striking the witness’s direct examination testimony is not proper. Furthermore, State v. Patterson, 59 N.C. App. 650 (1983), appears to indicate that the fact-finder should not be allowed to draw any inference from the witness’s assertion of the privilege. That leaves the opposing party without a remedy when a witness invokes the Fifth Amendment as a shield against cross-examination addressed to credibility, a state of affairs criticized by some commentators. Of course, most fact-finders will probably go ahead with the prohibited inference anyhow, so the lack of a remedy may be more apparent than real.

Let’s return to the example from the beginning of this post. When the state’s eyewitness asserts the privilege in response to defense counsel’s question about drug use, what should happen? Assuming that the witness is under subpoena, he hasn’t waived the privilege by testifying on direct, and so can’t be compelled to answer. But because the question goes to the witness’s ability to perceive, not merely his credibility, it concerns a non-collateral matter, and the court may strike some or all of the witness’s direct examination testimony as a result.