*CONSTITUTIONAL LAW -
FIFTH AMENDMENT - SELF-INCRIMINATION - GRAND JURY TESTIMONY - UNRELATED
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.
] | [ISSUES & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
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
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.
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.
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.
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 by Court
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).
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
, 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."
Generally, "a criminal defendant who testifies at trial on his own behalf
is subject to cross-examination about any vicious or criminal act of his
life.'" People v. Sorge>