liibulletin-ny
People v. Smith, 87 N.Y.2d 715 (February 8, 1996).
*CONSTITUTIONAL LAW - FIFTH AMENDMENT - SELF-INCRIMINATION - GRAND JURY TESTIMONY - UNRELATED PENDING CHARGE
FEDERAL CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION APPLIES TO A DEFENDANT BEFORE THE GRAND JURY AND CAN PRECLUDE CROSS-EXAMINATION ABOUT AN UNRELATED PENDING CHARGE SOLELY TO IMPEACH.
[SUMMARY] | [ISSUES & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]SUMMARY
Defendant was convicted of robbery in 1977. While testifying before a Grand Jury investigating an unrelated charge in 1990, defendant denied that he had participated in the 1977 robbery case. In 1991, the People charged defendant with larceny stemming from another unrelated incident. That indictment was dismissed in November of 1991. In March 1992, a Grand Jury indicted defendant for committing perjury before the Grand Jury in 1990. One week later, on March 16, 1992, the People sought to present the larceny charges before a second Grand Jury. Before the judge, the prosecutor advised defense counsel of his intention to cross-examine defendant about his 1977 robbery and use this testimony against him in the pending perjury indictment. Because such questioning would have forced defendant to incriminate himself regarding the pending perjury charge, his counsel instructed him not to answer questions about the 1977 robbery conviction. The Grand Jury judge ruled, however, that defendant must endure cross-examination about the 1977 robbery conviction or not testify at all. Defendant chose not to testify. The Grand Jury then indicted defendant for larceny and possession of stolen property. Insisting that the judge had forced defendant to forego testifying about the larceny or else forfeit his right against self-incrimination regarding the pending perjury charge, defendant moved before the trial court to dismiss the larceny indictment pursuant to CRIM. PROC. §§ 190.50, 210.20 and 210.35. Granting defendant's motion, the court dismissed the indictment. The court held that the People could not question defendant regarding the 1977 robbery conviction. The Appellate Division affirmed.ANALYSIS
ISSUES
Whether a defendant who waives the privilege against self-incrimination and testifies before a Grand Jury opens himself or herself to cross-examination regarding unrelated, pending, criminal charges.DISPOSITION
A divided Court held that a defendant who testifies before a Grand Jury retains the right against self-incrimination regarding unrelated, pending, criminal charges during cross-examination.CASES CITED
Key
- People v. Betts, 70 N.Y.2d 289 (N.Y. 1987).
- People v. Sandoval, 34 N.Y.2d 371 (N.Y. 1974) (cited by the dissent).
Cited
- Minnesota v. Murphy, 465 U.S. 420 (1984).
- People v. Smith, 84 N.Y.2d 998 (N.Y. 1994).
- People v. Swamp, 84 N.Y.2d 725 (N.Y.1995) (cited by the dissent).
- People v. Corrigan, 80 N.Y.2d 326 (N.Y.1992).
- People v. Bennett, 79 N.Y.2d 464 (N.Y. 1992).
- People v. Evans, 79 N.Y.2d 407 (N.Y. 1992).
- People v. Russ, 79 N.Y.2d 173 (N.Y. 1992).
- People v. Sorge, 301 N.Y. 198 (N.Y. 1950).
- People v. Lazar, 272 N.Y.S.2d 898 (N.Y. Sup. Ct. 1966).
OTHER SOURCES
Cited by Court
- U.S. Const. amend. V.
- CRIM. PROC. LAW § 190.45(1) (McKinney 1993).
- CRIM. PROC. LAW § 190.50 (McKinney 1993).
- CRIM. PROC. LAW § 210.20 (McKinney 1993).
- CRIM. PROC. LAW § 210.35 (McKinney 1993).
Related Sources
- Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964).
- Palko v. Connecticut, 302 U.S. 319 (1937).
- Brownell, Criminal Procedure in New York, pt. 1, ch. 14 (rev. ed. 1985).
- David Dolinko, Is There a Rationale for the Privilege Against Self-Incrimination?, 33 UCLA L. Rev. 1063 (1986).
- Peter Lushing, Testimonial Immunity and the Privilege Against Self-Incrimination: A Study in Isomorphism, 73 J. Crim. L. 1690 (1982).
COMMENTARY
Court's Reasoning
Majority
New York courts cannot condition a criminal defendant's opportunity to testify in his or her defense on the prosecution's opportunity to incriminate the defendant's role in an unrelated, pending, criminal proceeding. People v. Betts, 70 N.Y.2d 289, 292 (N.Y. 1987). After Smith, this prohibition extends to criminal defendants who seek to testify in their defense during Grand Jury proceedings.The New York Court of Appeals offered three reasons for reaching this conclusion. First, although a defendant's right to testify before a Grand Jury arises from state statute rather than the Constitution, nothing in the language of CRIM. PROC. § 190.50(5) suggests that the New York legislators who wrote it thought that one's waiver of the protection against self-incrimination should exceed "the scope of the accused's right to testify." Second, aside from the scope of the constitutional right to testify, exists "the discrete, related and correspondingly important' right against self-incrimination as to pending charges." People v. Bennett, 79 N.Y.2d 464, 468 (N.Y. 1992). Constitutional weight always characterizes this latter right, regardless of the nature of the proceeding in which one invokes it. Third, although a Grand Jury determines only the issuance of a formal accusation of a defendant, not his or her guilt, "conditioning the right to testify upon waiver of the constitutional right against self-incrimination in a pending charge" conflicts with all efforts to protect the right.
The court also noted that Smith presented a "highly unusual case where a prior conviction was also an element of a pending charge." In so doing, the court explicitly limited its holding to bar only cross-examination "questioning regarding pending charges solely for the purpose of impeaching the credibility of a defendant who testifies before a Grand Jury."