Can a witness who refuses to testify before a jury refuse to give evidence under the Fifth Amendment privilege?

California, United States of America


The following excerpt is from Abebe v. Superior Court of State, B275435 (Cal. App. 2017):

require him to invoke the privilege in front of a jury . . . . [Citation.] But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony." (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554.) In Lopez, for example: "[O]nce the trial court was made aware the witness intended to claim a Fifth Amendment privilege, it made the proper inquiries and determined the testimony of the witness would be relevant, and the privilege did not apply. It then ordered [the witness] to testify before the jury. [The witness] took the stand and refused to answer questions, basing his refusal on a privilege he was not entitled to claim. We find, under these circumstances, that the jury was entitled to consider [the witness's] improper claim of privilege against him as evidence relevant to demonstrate exactly what the gang expert had opined: that gang members act as a unit to advance the cause of the gang and to protect their members." (Id. at pp. 1555-1556.) This is one of the negative inferences a jury may draw when a recalcitrant witness refuses to provide relevant testimony. Another example would be a witness who has been frightened into silence by fear of gang retaliation. (See Sisneros, supra, 174 Cal.App.4th at p. 152 [witness's courtroom conductrefusing to testify or take the oathwas properly viewed by jury because it "provided strong support for the expert's opinion that [a particular gang] engaged in witness intimidation"].)

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