Fifth Amendment privilege in New York

2019As an " absolute prerequisite to interrogation,'" individuals "taken into custody by law enforcement authorities . . . must be adequately and effectively apprised of [their] rights' safeguarded by the Fifth Amendment privilege against self-incrimination" ( People v Dunbar , 24 NY3d 304, 313-314 , quoting Miranda v Arizona , 384 US 436, 467 ; see US Const Amend V; NY [*2]Const, art I, § 6).

2019As an " absolute prerequisite to interrogation,'" individuals "taken into custody by law enforcement authorities . . . must be adequately and effectively apprised of [their] rights' safeguarded by the Fifth Amendment privilege against self-incrimination" ( People v Dunbar , 24 NY3d 304, 313-314 , quoting Miranda v Arizona , 384 US 436, 467 ; see US Const Amend V; NY [*2]Const, art I, § 6).

2019"Where, as here, a witness asserts [her] Fifth Amendment privilege in the presence of the jury, the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant's right to a fair trial" ( People v Vargas , 86 NY2d at 221 ). "[A] witness's invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness's assertion of the privilege, and two, when

2019"Where, as here, a witness asserts [her] Fifth Amendment privilege in the presence of the jury, the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant's right to a fair trial" ( People v Vargas , 86 NY2d at 221 ). "[A] witness's invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness's assertion of the privilege, and two, when

2015(South Dakota v Neville, 459 US 553 [1983] [a person suspected of drunk driving does not have a constitutional right to refuse to take a blood test]; Schmerher v California, 384 US 757 [1966] [no Fifth Amendment violation in taking blood sample from drunk driving suspect against his will].) It also bears noting that there are other forms of evidence that are not admissible at trial as part of the prosecution’s case-in-chief, but that can still be used to impeach the defendant on cross-examination.

2004In rejecting defendant’s Fifth Amendment claim, the trial court relied largely on Schmerber v California ( 384 US 757 [1966], supra).

2017Here, although the defendant met his initial burden with respect to the complainant’s boyfriend, the People demonstrated, by producing the boyfriend, who indicated his intention to invoke his Fifth Amendment privilege against self-incrimination if questioned, that the witness was unavailable (see People v Webster, 248 AD2d 738, 738-739 [1998]; cf. People v Macana, 84 NY2d at 177-179 ).

2014The People’s “bare allegation that the witness in question ‘apparently’ would assert [his] Fifth Amendment privilege, in light of the attendant circumstances, did not render that witness unavailable” (Pe ople v Neal, 204 AD2d 132, 132 [1994], lv denied 84 NY2d 830 [1994]; see generally People v Macana, 84 NY2d 173, 179-180 [1994]).

2021As to the utilization of inferences drawn from the brother's invocation [*5]of the Fifth Amendment privilege to "unfairly prejudice . . . defendant by adding critical weight to the [People's] case in a form not subject to cross-examination" ( People v Berry , 27 NY3d at 16 [internal quotation marks, brackets and citations omitted]), the brother only invoked the privilege three times, each time County Court directed him to answer, [FN3] thus rendering those responses subject to cross-examination, and, as a result, "there was no danger of the jury drawing improper inferences" ( id. at 17 n 2; co

2021As to the utilization of inferences drawn from the brother's invocation [*5]of the Fifth Amendment privilege to "unfairly prejudice . . . defendant by adding critical weight to the [People's] case in a form not subject to cross-examination" ( People v Berry , 27 NY3d at 16 [internal quotation marks, brackets and citations omitted]), the brother only invoked the privilege three times, each time County Court directed him to answer, [FN3] thus rendering those responses subject to cross-examination, and, as a result, "there was no danger of the jury drawing improper inferences" ( id. at 17 n 2; co

2013The Miranda warnings are procedural safeguards intended to secure the Fifth Amendment privilege against self-incrimination by protecting individuals from the informal compulsion exerted by law enforcement officials during custodial questioning (see Miranda v Arizona, 384 US at 444, 461 ; People v Paulman, 5 NY3d 122, 129 [2005]; People v Berg, 92 NY2d 701, 704 [1999]; People v Borukhova, 89 AD3d 194, 211-212 [2011]).

2013The Miranda warnings are procedural safeguards intended to secure the Fifth Amendment privilege against self-incrimination by protecting individuals from the informal compulsion exerted by law enforcement officials during custodial questioning (see Miranda v Arizona, 384 US at 444, 461 ; People v Paulman, 5 NY3d 122, 129 [2005]; People v Berg, 92 NY2d 701, 704 [1999]; People v Borukhova, 89 AD3d 194, 211-212 [2011]).

2004The Supreme Court properly accepted the invocation by a defense witness of the Fifth Amendment privilege against self-incrimination, since testifying would have subjected him to a real possibility of criminal prosecution (see People v Arroyo, 46 NY2d 928 [1979]; People v Faulk, 255 AD2d 333 [1998]; see also Hoffman v United States, 341 US 479, 486-487 [1951]).

2004The Supreme Court properly accepted the invocation by a defense witness of the Fifth Amendment privilege against self-incrimination, since testifying would have subjected him to a real possibility of criminal prosecution (see People v Arroyo, 46 NY2d 928 [1979]; People v Faulk, 255 AD2d 333 [1998]; see also Hoffman v United States, 341 US 479, 486-487 [1951]).

2017There was extensive evidence to support the inference of accessorial liability as to each of the charges. *619 The court properly declined to strike any of the victim’s testimony as a remedy for his repeated invocation of his Fifth Amendment privilege against self-incrimination during cross-examination, and it provided a suitable remedy by repeatedly instructing the jury that while the victim had the right to do so, the jury may consider his assertion of the privilege in determining the credibility and weight of his testimony (see People v Siegel, 87 NY2d 536, 544-545 [1995]).

2014If he subsequently invoked his Fifth Amendment privilege, the trial court should have gone as far as striking all or some of his direct testimony (see People v Siegel, 87 NY2d 536, 544 [1995]).

2017Accordingly, the Appellate Term properly determined that the Civil Court erred in permitting the defendants to read into evidence the transcripts of the depositions of Sher and Vayman, in which they invoked their Fifth Amendment privilege against self-incrimination and declined to answer questions, and in instructing the jury that it could draw an adverse inference against the plaintiff based on their refusal to answer questions (see Access Capital v DeCicco, 302 AD2d at 52 ; State of New York v Markowitz, 273 AD2d at 646 ).

2013While it is proper for the court to give such an instruction to the jury in a civil action when a party invokes his or her Fifth Amendment privilege (see Marine Midland Bank v Russo Produce Co., 50 NY2d 31 [1980]), generally, the adverse inference is inappropriate when it is based on a nonparty’s decision to remain silent (see Access Capital v DeCicco, 302 AD2d 48, 52 [2002]; State of New York v Markowitz, 273 AD2d 637 [2000]).

2019"Where, as here, a witness asserts [her] Fifth Amendment privilege in the presence of the jury, the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant's right to a fair trial" ( People v Vargas , 86 NY2d at 221 ). "[A] witness's invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness's assertion of the privilege, and two, when

2019"Where, as here, a witness asserts [her] Fifth Amendment privilege in the presence of the jury, the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant's right to a fair trial" ( People v Vargas , 86 NY2d at 221 ). "[A] witness's invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness's assertion of the privilege, and two, when

2018Assn. v Federal Chandros , 148 AD2d 567, 568 [1989] [concluding, on an application to hold a judgment debtor in contempt for failing to comply with a subpoena, that "a blanket refusal to answer questions based upon the Fifth Amendment privilege against self-incrimination cannot be sustained absent unique circumstances"]; Bank of America, N.A. v Veluchamy , 643 F3d 185, 187 [7th Cir 2011] [same]; United States v Hatchett , 862 F2d 1249, 1251 [6th Cir 1988] [same]; Capitol Products Corporation v Hernon , 457 F2d at 542-543 [same]; Huber v Arck Credit Company, LLC , 2016 WL 482955 at *5-6, 2016 U

2018Assn. v Federal Chandros , 148 AD2d 567, 568 [1989] [concluding, on an application to hold a judgment debtor in contempt for failing to comply with a subpoena, that "a blanket refusal to answer questions based upon the Fifth Amendment privilege against self-incrimination cannot be sustained absent unique circumstances"]; Bank of America, N.A. v Veluchamy , 643 F3d 185, 187 [7th Cir 2011] [same]; United States v Hatchett , 862 F2d 1249, 1251 [6th Cir 1988] [same]; Capitol Products Corporation v Hernon , 457 F2d at 542-543 [same]; Huber v Arck Credit Company, LLC , 2016 WL 482955 at *5-6, 2016 U

2015“By waiving the right to immunity, a testifying defendant before the [g]rand [j]ury necessarily gives up the Fifth Amendment privilege against self-incrimination” (People v Smith, 87 NY2d 715, 719 [1996]).

2015“By waiving the right to immunity, a testifying defendant before the [g]rand [j]ury necessarily gives up the Fifth Amendment privilege against self-incrimination” (People v Smith, 87 NY2d 715, 719 [1996]).

1999The court properly exercised its discretion when it refused defendant’s request to charge the jury that it could consider, with respect to credibility, a police officer’s invocation of his Fifth Amendment privilege on cross-examination concerning a collateral matter, and instead instructed the jury to draw no inference from that fact (see, People v Siegel, 87 NY2d 536, 544-545 ; see also, People v Thomas, 51 NY2d 466, 472 ).

1994The court then exercised its discretion in denying defense counsel’s request that Skinner be called as a witness for the purpose of invoking his Fifth Amendment privilege (People v Thomas, 51 NY2d 466, 473 [wholly improper in most cases to give jurors opportunity to speculate by allowing a party to parade a witness before the jury for the sole purpose of eliciting in open court the witness’ refusal to testify]).

2019People v Vargas , 86 NY2d 215, 221 [the People questioned a witness knowing the witness would respond by invoking the Fifth Amendment]). " Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness's refusal to testify adds critical weight to the People's case in a form not subject to cross-examination, reversal is not warranted'" ( People v Alston , 71 AD3d 684, 685 , quoting People v Jones , 138 AD2d 405, 406 ).

1991Since it is likely that she will again invoke her Fifth Amendment privilege, compelling her to do so in front of the jury can only have the effect of impermissibly corroborating or adding critical weight to the rebuttal testimony which the People will be introducing thereafter (People v Berg, 59 NY2d 294 [1983]; People v Jones, 138 AD2d 405 [2d Dept 1988]; People v Malphurs, 111 AD2d 266 [2d Dept 1985]).

2013While it is proper for the court to give such an instruction to the jury in a civil action when a party invokes his or her Fifth Amendment privilege (see Marine Midland Bank v Russo Produce Co., 50 NY2d 31 [1980]), generally, the adverse inference is inappropriate when it is based on a nonparty’s decision to remain silent (see Access Capital v DeCicco, 302 AD2d 48, 52 [2002]; State of New York v Markowitz, 273 AD2d 637 [2000]).

2009It is now well accepted that when a party to a civil action asserts his or her Fifth Amendment privilege against self-incrimination and refuses to testify, the factfinder may draw an adverse inference against that party (see Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 42-43 [1980]; Matter of Boter, 46 AD3d 1, 7 [1st Dept 2007]; Matter of Muraskin, 286 AD2d 186, 187 [1st Dept 2001]).

2018The Fifth Amendment privilege against self-incrimination, which "can be asserted in any proceeding, civil or criminal, . . . protects against any disclosures which the [individual] reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used" ( Kastigar v United States , 406 US 441, 444-445 [1972]; see Lefkowitz v Turley , 414 US 70, 77 [1973]; People v Cantave , 21 NY3d 374 , 379 [2013]).

2018The Fifth Amendment privilege against self-incrimination, which "can be asserted in any proceeding, civil or criminal, . . . protects against any disclosures which the [individual] reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used" ( Kastigar v United States , 406 US 441, 444-445 [1972]; see Lefkowitz v Turley , 414 US 70, 77 [1973]; People v Cantave , 21 NY3d 374 , 379 [2013]).

1996Handwriting is a physical characteristic and compelling a person to write for the purpose of identifying his handwriting violates neither the Fifth Amendment privilege against self-incrimination (Gilbert v California, 388 US 263 [1967]; United States v Dionisio, 410 US 1, 6-7 [1973]; People v Smith, 86 AD2d 251, 252-253 [3d Dept 1982]) nor the Fourth Amendment prohibition against unreasonable searches and seizures.

1996Handwriting is a physical characteristic and compelling a person to write for the purpose of identifying his handwriting violates neither the Fifth Amendment privilege against self-incrimination (Gilbert v California, 388 US 263 [1967]; United States v Dionisio, 410 US 1, 6-7 [1973]; People v Smith, 86 AD2d 251, 252-253 [3d Dept 1982]) nor the Fourth Amendment prohibition against unreasonable searches and seizures.

2014Contrary to the People’s further contention, the evidence is not overwhelming (see generally People v Arafet, 13 NY3d 460, 467 [2009]; People v Crimmins, 36 NY2d 230, 241-242 [1975]), and thus we cannot conclude that the error is harmless (cf. People v McCullough, 117 AD3d 1415, 1415 [2014], lv denied 23 NY3d 1040 [2014]; People v Thomas, 96 AD3d 1670, 1672 [2012], lv denied 19 NY3d 1002 [2012]).

2007The court’s prompt curative instructions rendered harmless any possible impropriety occasioned by the prosecutor’s questioning of a defense witness as to his reason for invoking his Fifth Amendment privilege against self-incrimination (see People v Tafur, 174 AD2d 642 [1991]; People v Codrington, 109 AD2d 891, 891-892 [1985]; see also People v Crimmins, 36 NY2d 230 [1975]).

2002In Williams v Florida ( 399 US 78 [1970]), the Supreme Court held that a similar alibi notice statute did not violate a defendant’s Fifth Amendment privilege against self-incrimination.

2002In Williams v Florida ( 399 US 78 [1970]), the Supreme Court held that a similar alibi notice statute did not violate a defendant’s Fifth Amendment privilege against self-incrimination.

2011The notion that a corporation could somehow benefit from a personal invocation of the Fifth Amendment privilege has repeatedly been rejected (Beilis v United States, 417 US 85, 88 [1974]; United States v White, 322 US 694, 699 [1944]; Grant v United States, 227 US 74 [1913]; Big Apple Concrete Corp. v Abrams, 103 AD2d 609, 612-613 [1984]).

2011The notion that a corporation could somehow benefit from a personal invocation of the Fifth Amendment privilege has repeatedly been rejected (Beilis v United States, 417 US 85, 88 [1974]; United States v White, 322 US 694, 699 [1944]; Grant v United States, 227 US 74 [1913]; Big Apple Concrete Corp. v Abrams, 103 AD2d 609, 612-613 [1984]).

2015In addition, a witness’s assertion of the Fifth Amendment privilege against self-incrimination renders him or her unavailable within the meaning of CPL 670.10 (see People v Whitley, 14 AD3d 403, 404 [2005]; People v Johns, 297 AD2d 645, 646 [2002]; People v Ortiz, 209 AD2d 332 , 333 [1994]; People v Varsos, 182 AD2d 508, 509 [1992]; People v Chavers, 82 Misc. 2d 201, 204 [Sup Ct, NY County 1975]; see also People v Brown, 26 NY2d 88, 93 [1970]).

2015In addition, a witness’s assertion of the Fifth Amendment privilege against self-incrimination renders him or her unavailable within the meaning of CPL 670.10 (see People v Whitley, 14 AD3d 403, 404 [2005]; People v Johns, 297 AD2d 645, 646 [2002]; People v Ortiz, 209 AD2d 332 , 333 [1994]; People v Varsos, 182 AD2d 508, 509 [1992]; People v Chavers, 82 Misc. 2d 201, 204 [Sup Ct, NY County 1975]; see also People v Brown, 26 NY2d 88, 93 [1970]).