exercise privilege in Colorado

2021See Dikeman, 192 Colo. at 4 , 555 P.2d at 520 (“The fundamental point is that the exercise of the privilege is not evidence to be used in the case by any party . . . .” (quoting State v. Smith, 446 P.2d 571, 581 (1968))); see also People v. Frierson, 808 P.2d 1197, 1203 (Cal. 1991) (“Allowing a witness to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference.”). ¶ 73 Although the trial court abused its discretion, we conclude the error was harmless for two reasons. ¶ 74 First, although Sauser argues that the pros

2015See People v. Fletcher, 193 Colo. 314, 316 , 566 P.2d 345, 347 (1977) (trial court did not err in holding in camera hearing to determine whether witness would testify or invoke her Fifth Amendment privilege); People v. Dikeman, 192 Colo. 1, 2 , 555 P.2d 519, 519 (1976) (it was proper for the trial court to hold an in camera hearing to determine whether the witness “would, in fact, invoke his privilege”). ¶84 However, “‘the exercise of the privilege is not evidence to be used in the case [b]y any party.’ ” Dikeman , 192 Colo, at 4, 555 P.2d at 520 (quoting State v. Smith, 74 Wash.2d 744 , 446 P

2021See Dikeman, 192 Colo. at 4 , 555 P.2d at 520 (“The fundamental point is that the exercise of the privilege is not evidence to be used in the case by any party . . . .” (quoting State v. Smith, 446 P.2d 571, 581 (1968))); see also People v. Frierson, 808 P.2d 1197, 1203 (Cal. 1991) (“Allowing a witness to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference.”). ¶ 73 Although the trial court abused its discretion, we conclude the error was harmless for two reasons. ¶ 74 First, although Sauser argues that the pros

2021See Dikeman, 192 Colo. at 4 , 555 P.2d at 520 (“The fundamental point is that the exercise of the privilege is not evidence to be used in the case by any party . . . .” (quoting State v. Smith, 446 P.2d 571, 581 (1968))); see also People v. Frierson, 808 P.2d 1197, 1203 (Cal. 1991) (“Allowing a witness to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference.”). ¶ 73 Although the trial court abused its discretion, we conclude the error was harmless for two reasons. ¶ 74 First, although Sauser argues that the pros

2016See Marks v. United States, 430 U.S. 188, 193 (1977); see also People v. Schaufele, 2014 CO 43, ¶ 64 n.3, 325 P.3d 1060, 1073 n.3 (Eid, J., concurring).

2016See Marks v. United States, 430 U.S. 188, 193 (1977); see also People v. Schaufele, 2014 CO 43, ¶ 64 n.3, 325 P.3d 1060, 1073 n.3 (Eid, J., concurring).

2016See id. at 48-52 , 122 S.Ct. 2017 . € 64 While I agree with the majority that Justice O'Connor's proposal for a comprehensive method of evaluating the constitutionality of penalties imposed upon the exercise of the privilege did not carry the day, her conclusion that the penalty imposed in McKune was not unconstitutionally compulsive under any reasonable test, as the narrowest ground for the judgment of reversal in that case, did represent the holding of the court.

2016See id. at 48–52. ¶64 While I agree with the majority that Justice O’Connor’s proposal for a comprehensive method of evaluating the constitutionality of penalties imposed upon the exercise of the privilege did not carry the day, her conclusion that the penalty imposed in McKune was not unconstitutionally compulsive under any reasonable test, as the narrowest ground for the judgment of reversal in that case, did represent the holding of the court.

2016See Marks v. United States, 480 U.S. 188 , 193, 97 S.Ct. 990 , 51 LEd2d 260 (1977); see also People v. Schaufele, 2014 CO 43 , ¶ 64 n. 3, 825 P.3d 1060 , 1073 n. 3 (Eid, J., concurring).

2016See Marks v. United States, 430 U.S. 188, 193 (1977); see also People v. Schaufele, 2014 CO 43, ¶ 64 n.3, 325 P.3d 1060, 1073 n.3 (Eid, J., concurring).

2020While it is clearly 1 improper, for example, for a prosecutor to comment on a defendant’s exercise of his privilege against self-incrimination, either by declining to make a statement while in police custody, see Doyle v. Ohio, 426 U.S. 610, 611 (1976), or by declining to testify at trial, see Griffin v. California, 380 U.S. 609 , 615 (1965), or to comment on a defendant’s exercise of his right to be tried to a jury rather than to the court, see People v. Rodgers, 756 P.2d 980, 983 (Colo. 1988), overruled on other grounds by People v. Miller, 113 P.3d 743 , 748–49 (Colo. 2005), the failure to

2019See Griffin , 380 U.S. at 615 , 85 S.Ct. 1229 ; People v. Mozee , 723 P.2d 117 , 123 (Colo. 1986) ("The privilege of a defendant to remain silent 'unless he chooses to speak in the unfettered exercise of his own will' is sufficiently important that the constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege at trial." (quoting Carter v. Kentucky , 450 U.S. 288 , 305, 101 S.Ct. 1112 , 67 L.Ed.2d 241 (1981) )); cf. People v. Ortega , 198 Colo. 179 , 597 P.2d 1034 , 1036 (1979) ("Prosecutorial comment which has the effect of creating an infer

2021See Dikeman, 192 Colo. at 4 , 555 P.2d at 520 (“The fundamental point is that the exercise of the privilege is not evidence to be used in the case by any party . . . .” (quoting State v. Smith, 446 P.2d 571, 581 (1968))); see also People v. Frierson, 808 P.2d 1197, 1203 (Cal. 1991) (“Allowing a witness to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference.”). ¶ 73 Although the trial court abused its discretion, we conclude the error was harmless for two reasons. ¶ 74 First, although Sauser argues that the pros

2020While it is clearly 1 improper, for example, for a prosecutor to comment on a defendant’s exercise of his privilege against self-incrimination, either by declining to make a statement while in police custody, see Doyle v. Ohio, 426 U.S. 610, 611 (1976), or by declining to testify at trial, see Griffin v. California, 380 U.S. 609 , 615 (1965), or to comment on a defendant’s exercise of his right to be tried to a jury rather than to the court, see People v. Rodgers, 756 P.2d 980, 983 (Colo. 1988), overruled on other grounds by People v. Miller, 113 P.3d 743 , 748–49 (Colo. 2005), the failure to

2020While it is clearly 1 improper, for example, for a prosecutor to comment on a defendant’s exercise of his privilege against self-incrimination, either by declining to make a statement while in police custody, see Doyle v. Ohio, 426 U.S. 610, 611 (1976), or by declining to testify at trial, see Griffin v. California, 380 U.S. 609 , 615 (1965), or to comment on a defendant’s exercise of his right to be tried to a jury rather than to the court, see People v. Rodgers, 756 P.2d 980, 983 (Colo. 1988), overruled on other grounds by People v. Miller, 113 P.3d 743 , 748–49 (Colo. 2005), the failure to

2019See Griffin , 380 U.S. at 615 , 85 S.Ct. 1229 ; People v. Mozee , 723 P.2d 117 , 123 (Colo. 1986) ("The privilege of a defendant to remain silent 'unless he chooses to speak in the unfettered exercise of his own will' is sufficiently important that the constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege at trial." (quoting Carter v. Kentucky , 450 U.S. 288 , 305, 101 S.Ct. 1112 , 67 L.Ed.2d 241 (1981) )); cf. People v. Ortega , 198 Colo. 179 , 597 P.2d 1034 , 1036 (1979) ("Prosecutorial comment which has the effect of creating an infer

2019See Griffin , 380 U.S. at 615 , 85 S.Ct. 1229 ; People v. Mozee , 723 P.2d 117 , 123 (Colo. 1986) ("The privilege of a defendant to remain silent 'unless he chooses to speak in the unfettered exercise of his own will' is sufficiently important that the constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege at trial." (quoting Carter v. Kentucky , 450 U.S. 288 , 305, 101 S.Ct. 1112 , 67 L.Ed.2d 241 (1981) )); cf. People v. Ortega , 198 Colo. 179 , 597 P.2d 1034 , 1036 (1979) ("Prosecutorial comment which has the effect of creating an infer

2015Thus, a party may not call a witness to testify before the jury if it “knows the witness will exercise [his or] her privilege against self-incrimination.” People v. Newton, 940 P.2d 1065, 1067 (Colo.App.1996) (citing Dikeman, 192 Colo. at 4 , 555 P.2d at 521 ). ¶ 85 “The privilege against self-incrimination ... continues until a defendant has been sentenced.” People v. Villa, 671 P.2d 971, 973 (Colo.App.1983) (citing Steinberger v. Dist.

2015See People v. Fletcher, 193 Colo. 314, 316 , 566 P.2d 345, 347 (1977) (trial court did not err in holding in camera hearing to determine whether witness would testify or invoke her Fifth Amendment privilege); People v. Dikeman, 192 Colo. 1, 2 , 555 P.2d 519, 519 (1976) (it was proper for the trial court to hold an in camera hearing to determine whether the witness “would, in fact, invoke his privilege”). ¶84 However, “‘the exercise of the privilege is not evidence to be used in the case [b]y any party.’ ” Dikeman , 192 Colo, at 4, 555 P.2d at 520 (quoting State v. Smith, 74 Wash.2d 744 , 446 P

2015See People v. Fletcher, 193 Colo. 314, 316 , 566 P.2d 345, 347 (1977) (trial court did not err in holding in camera hearing to determine whether witness would testify or invoke her Fifth Amendment privilege); People v. Dikeman, 192 Colo. 1, 2 , 555 P.2d 519, 519 (1976) (it was proper for the trial court to hold an in camera hearing to determine whether the witness “would, in fact, invoke his privilege”). ¶84 However, “‘the exercise of the privilege is not evidence to be used in the case [b]y any party.’ ” Dikeman , 192 Colo, at 4, 555 P.2d at 520 (quoting State v. Smith, 74 Wash.2d 744 , 446 P

2015Thus, a party may not call a witness to testify before the jury if it “knows the witness will exercise [his or] her privilege against self-incrimination.” People v. Newton, 940 P.2d 1065, 1067 (Colo.App.1996) (citing Dikeman, 192 Colo. at 4 , 555 P.2d at 521 ). ¶ 85 “The privilege against self-incrimination ... continues until a defendant has been sentenced.” People v. Villa, 671 P.2d 971, 973 (Colo.App.1983) (citing Steinberger v. Dist.

2014See Jones v. State, 249 Ga.App. 327 , 548 S.E.2d 75, 76 (2001).

2014See Jones v. State, 249 Ga.App. 327 , 548 S.E.2d 75, 76 (2001).

2004Whether burdens imposed on the exercise of the privilege are referred to as "sanctions" or merely as "remedies" to prevent inherent unfairness, the view that having selected the litigation process, a plaintiff may not use the privilege to advance his cause—to use it as a sword rather than a shield—is an "approach ... that has not carried the day." McMullen v. Bay Ship Mgmt., 335 F.3d 215, 218 (3d Cir.2003).

2003See People v. Velasquez, 192 Cal.App.3d 319, 328, n. 4 , 237 Cal.Rptr. 366 , 371 n. 4 (1987).

2003See People v. Velasquez, 192 Cal.App.3d 319, 328, n. 4 , 237 Cal.Rptr. 366 , 371 n. 4 (1987).

1997E.g., id. at 437 , 104 S.Ct. at 1148 (“Whether we employ a subjective or an objective test, there is no reasonable basis for concluding that Minnesota attempted to attach an impermissible penalty to the exercise of the privilege against self-incrimination.”), 439, 104 S.Ct. at 1148 (“Accordingly, we cannot conclude that Murphy was deterred from claiming the privilege by a reasonably perceived threat of revocation.”).

1997E.g., id. at 437 , 104 S.Ct. at 1148 (“Whether we employ a subjective or an objective test, there is no reasonable basis for concluding that Minnesota attempted to attach an impermissible penalty to the exercise of the privilege against self-incrimination.”), 439, 104 S.Ct. at 1148 (“Accordingly, we cannot conclude that Murphy was deterred from claiming the privilege by a reasonably perceived threat of revocation.”).

1986See Wimmer v. Lehman, 705 F.2d 1402 (4th Cir.), cert. denied 464 U.S. 992 , 104 S.Ct. 484 , 78 L.Ed.2d 681 (1983); Hoover v. Knight, 678 F.2d 578 (5th Cir.1982); Diebold v. Civil Service Commission, 611 F.2d 697 (8th Cir.1979); United States v. Rilliet, 595 F.2d 1138 (9th Cir.1979).

1986See Wimmer v. Lehman, 705 F.2d 1402 (4th Cir.), cert. denied 464 U.S. 992 , 104 S.Ct. 484 , 78 L.Ed.2d 681 (1983); Hoover v. Knight, 678 F.2d 578 (5th Cir.1982); Diebold v. Civil Service Commission, 611 F.2d 697 (8th Cir.1979); United States v. Rilliet, 595 F.2d 1138 (9th Cir.1979).