When a witness invokes his Fifth Amendment right against self-incrimination, does this constitute prosecutorial misconduct?

When a government witness invokes his or her Fifth Amendment right against self-incrimination, prosecutorial misconduct may be found either (1) when the Government has made a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege, or (2) when an inference from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination. Namet v. United States, 373 U.S. 179, 186-67 (1963).

The calling of Strachan may or may not have been prosecutorial misconduct depending on what the prosecutor knew at the time. However, a short time after Strachan invoked his Fifth Amendment privilege, the prosecution granted him immunity and allowed him to be examined and cross-examined. This negated the effect of any inferences that might have been drawn from the earlier invocation of the Fifth Amendment. See United States v. Peterson, 549 F.2d 654, 658-659 (9th Cir.1977). Accordingly, the prosecutor's conduct in this instance did not materially affect the fairness of the trial.

II. PROSECUTORIAL MISCONDUCT - (Vouching)

Standard of Review