Fifth Amendment privilege in Kentucky

2020Our precedent acknowledges that “neither the prosecution nor the defense may call a witness knowing that the witness will assert his Fifth Amendment privilege against self-incrimination, and we have applied this black-letter law in cases where a witness invokes the privilege in order to avoid answering any substantive questions.” Combs v. Commonwealth, 74 S.W.3d 738, 742 (Ky. 2002) (citation omitted).

2019McLemore insists that Simonton’s testimony “is likely to have at least partially contradicted the testimony of Cedric Weaver.” This Court dealt with the impact of a witness’s assertion of her Fifth Amendment privilege against self-incrimination in Combs, 74 S.W.3d 738 .

2024However, “the prosecution may not call a witness knowing that the witness will invoke the Fifth Amendment immunity.” Clayton v. Commonwealth, 786 S.W.2d 866, 868 (Ky. 1990).

2024However, “the prosecution may not call a witness knowing that the witness will invoke the Fifth Amendment immunity.” Clayton v. Commonwealth, 786 S.W.2d 866, 868 (Ky. 1990).

2021In addressing Barnes’ concerns about being forced to choose between waiving or invoking her Fifth Amendment right against self-incrimination, Judge Combs noted exercising one’s Fifth Amendment privilege is not without cost, McKune v. Lile, 536 U.S. 24, 41 (2002), and the Constitution does not “forbid requiring h[er] to choose.” McGautha v. California, 402 U.S. 183 , 213 13 Different orders were entered on October 4, and October 7, 2019, prompting Barnes to question which controlled.

2021In addressing Barnes’ concerns about being forced to choose between waiving or invoking her Fifth Amendment right against self-incrimination, Judge Combs noted exercising one’s Fifth Amendment privilege is not without cost, McKune v. Lile, 536 U.S. 24, 41 (2002), and the Constitution does not “forbid requiring h[er] to choose.” McGautha v. California, 402 U.S. 183 , 213 13 Different orders were entered on October 4, and October 7, 2019, prompting Barnes to question which controlled.

2026Absent evidence that [Hernandez’s] “will [was] overborne and his capacity for self-determination critically impaired” because of coercive police conduct, ibid.; see Colorado v. Connelly, 479 U.S. 157, 163-164 , 107 S.Ct. 515 , ––––, 93 L.Ed.2d 473 (1986), his waiver of his Fifth Amendment privilege was voluntary under [the Supreme] Court’s decision in Miranda.

2026Absent evidence that [Hernandez’s] “will [was] overborne and his capacity for self-determination critically impaired” because of coercive police conduct, ibid.; see Colorado v. Connelly, 479 U.S. 157, 163-164 , 107 S.Ct. 515 , ––––, 93 L.Ed.2d 473 (1986), his waiver of his Fifth Amendment privilege was voluntary under [the Supreme] Court’s decision in Miranda.

2024Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.” Smith, 312 S.W.3d at 358 (internal quotation marks and citations omitted).

2024Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.” Smith, 312 S.W.3d at 358 (internal quotation marks and citations omitted).

2003He relies primarily on the broad statement in Clayton v. Commonwealth, Ky., 786 S.W.2d 866 (1990) that “the prosecution may not call a witness knowing that the witness will invoke the Fifth Amendment immunity.” Id. at 868 , citing Commonwealth v. Brown, Ky., 619 S.W.2d 699, 703-04 (1981), overruled on other grounds by Murphy v. Commonwealth, Ky., 652 S.W.2d 69 (1983); see also Marlowe v. Commonwealth, Ky., 709 S.W.2d 424, 428-29 (1986); Commonwealth v. Blincoe, Ky. *789 App., 34 S.W.3d 822, 825 (2000).

2003He relies primarily on the broad statement in Clayton v. Commonwealth, Ky., 786 S.W.2d 866 (1990) that “the prosecution may not call a witness knowing that the witness will invoke the Fifth Amendment immunity.” Id. at 868 , citing Commonwealth v. Brown, Ky., 619 S.W.2d 699, 703-04 (1981), overruled on other grounds by Murphy v. Commonwealth, Ky., 652 S.W.2d 69 (1983); see also Marlowe v. Commonwealth, Ky., 709 S.W.2d 424, 428-29 (1986); Commonwealth v. Blincoe, Ky. *789 App., 34 S.W.3d 822, 825 (2000).

2024Nevertheless, a witness who “will testify as to some matters but not as to others should ordinarily be allowed to take the stand.” Adkins v. Commonwealth, 96 S.W.3d 779, 789 (Ky. 2003) (citing Combs v. Commonwealth, 74 S.W.3d 738 , 742–43, 745 (Ky. 2002)).

2007In any event, it is clear that Williams’ refusal to testify encompassed “substantive questions.” In Adkins v. Commonwealth, 96 S.W.3d 779, 789 (Ky.2003), the Court explained the significance of the “substantive question” analysis: “ Combs, supra, held that the trial court erred by refusing to allow a defense witness to take the stand simply because the witness indicated that she would assert her Fifth Amendment privilege in response to certain questions related to a collateral issue.” Although Combs dealt with the Compulsion Clause of the Sixth Amendment and this case implicates the Confrontat

2021While Barnes showed no appeal would cure a discovery blunder— because once revealed information cannot be retrieved, Bender v. Eaton, 343 S.W.2d 799, 802 (Ky. App. 1961)—she did not establish allowing civil discovery to proceed would cause her “great and irreparable harm” because she may still “invoke her Fifth Amendment privilege in both the criminal and civil actions.” That finding is wholly consistent with Maze, wherein a circuit judge with a misconduct charge pending before the Judicial Conduct Commission (JCC) sought to postpone JCC proceedings—due in part to concerns about invoking her F

2021While Barnes showed no appeal would cure a discovery blunder— because once revealed information cannot be retrieved, Bender v. Eaton, 343 S.W.2d 799, 802 (Ky. App. 1961)—she did not establish allowing civil discovery to proceed would cause her “great and irreparable harm” because she may still “invoke her Fifth Amendment privilege in both the criminal and civil actions.” That finding is wholly consistent with Maze, wherein a circuit judge with a misconduct charge pending before the Judicial Conduct Commission (JCC) sought to postpone JCC proceedings—due in part to concerns about invoking her F

2021But in reaching this decision, the [Salinas] plurality noted in a footnote, citing Doyle and Jenkins, that “Petitioner is correct that due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, but that rule does not apply where a suspect has not received the warnings' implicit promise that any silence will not be used against him.”28 Bartley ultimately held that “the giving of Miranda warnings generally bars the use of any ensuing silence.”29 And, even when Miranda warnings are given unnecessarily, “[w]hen an accused receives the M

2021But in reaching this decision, the [Salinas] plurality noted in a footnote, citing Doyle and Jenkins, that “Petitioner is correct that due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, but that rule does not apply where a suspect has not received the warnings' implicit promise that any silence will not be used against him.”28 Bartley ultimately held that “the giving of Miranda warnings generally bars the use of any ensuing silence.”29 And, even when Miranda warnings are given unnecessarily, “[w]hen an accused receives the M

2025In Price v. Commonwealth, 31 S.W.3d 885, 891 (Ky. 2000), this Court examined the prejudicial effect of informing the jury that a defendant had invoked his right to counsel relative to the dictates of Miranda v. Arizona, 384 U.S. 436 (1966), which is rooted in the Fifth Amendment privilege against self- 6 incrimination. 6 In the present matter, we need not delve further into the debate whether the prohibition on the drawing of adverse inferences from a pre-arrest consultation with counsel is properly based on the Fifth, Sixth, or Fourteenth Amendments because, notably, the Commonwealth has not

2025In Price v. Commonwealth, 31 S.W.3d 885, 891 (Ky. 2000), this Court examined the prejudicial effect of informing the jury that a defendant had invoked his right to counsel relative to the dictates of Miranda v. Arizona, 384 U.S. 436 (1966), which is rooted in the Fifth Amendment privilege against self- 6 incrimination. 6 In the present matter, we need not delve further into the debate whether the prohibition on the drawing of adverse inferences from a pre-arrest consultation with counsel is properly based on the Fifth, Sixth, or Fourteenth Amendments because, notably, the Commonwealth has not

2022Before the Court of Appeals, Cox argued that the trial court erred by failing to grant his motion to suppress on Miranda waiver grounds and by failing to grant his motion to suppress on invocation of counsel.7 Cox also 7 Cox v. Commonwealth, 2019-CA-000931-MR, 2020 WL 4514696 , at 2 (Ky. App. July 24, 2020). 18 disputed the trial court’s finding of fact as to what he said during the portion of the interview where he claimed he requested an attorney.8 The Court of Appeals disagreed and affirmed the trial court.9 First, regarding Cox’s Miranda waiver argument, the Court of Appeals held: “The Con

2022Before the Court of Appeals, Cox argued that the trial court erred by failing to grant his motion to suppress on Miranda waiver grounds and by failing to grant his motion to suppress on invocation of counsel.7 Cox also 7 Cox v. Commonwealth, 2019-CA-000931-MR, 2020 WL 4514696 , at 2 (Ky. App. July 24, 2020). 18 disputed the trial court’s finding of fact as to what he said during the portion of the interview where he claimed he requested an attorney.8 The Court of Appeals disagreed and affirmed the trial court.9 First, regarding Cox’s Miranda waiver argument, the Court of Appeals held: “The Con

2018“The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion.”83 “Indeed, the Fifth Amendment privilege is 82 While Tigue did implicate Smith, he never relayed to officers that he feared for his family members’ lives because of the potential threat Smith posed. 83 Colorado v. Connelly, 479 U.S. 157, 170 (1986) (citing United States v. Washington, 431 U.S. 181, 187 (1977); Miranda, 384 U.S. at 460 ) (emphasis added). 43 not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’”84 The only governmental

2018“The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion.”83 “Indeed, the Fifth Amendment privilege is 82 While Tigue did implicate Smith, he never relayed to officers that he feared for his family members’ lives because of the potential threat Smith posed. 83 Colorado v. Connelly, 479 U.S. 157, 170 (1986) (citing United States v. Washington, 431 U.S. 181, 187 (1977); Miranda, 384 U.S. at 460 ) (emphasis added). 43 not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’”84 The only governmental

2011The Fifth Amendment privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature ...” Schmerber v. California, 384 U.S. 757, 761 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966).

2011The Fifth Amendment privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature ...” Schmerber v. California, 384 U.S. 757, 761 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966).

2002See United States v. Crawford, 707 F.2d 447 (10th Cir.1983).

2002See United States v. Crawford, 707 F.2d 447 (10th Cir.1983).

2025In Price v. Commonwealth, 31 S.W.3d 885, 891 (Ky. 2000), this Court examined the prejudicial effect of informing the jury that a defendant had invoked his right to counsel relative to the dictates of Miranda v. Arizona, 384 U.S. 436 (1966), which is rooted in the Fifth Amendment privilege against self- 6 incrimination. 6 In the present matter, we need not delve further into the debate whether the prohibition on the drawing of adverse inferences from a pre-arrest consultation with counsel is properly based on the Fifth, Sixth, or Fourteenth Amendments because, notably, the Commonwealth has not

2025In Price v. Commonwealth, 31 S.W.3d 885, 891 (Ky. 2000), this Court examined the prejudicial effect of informing the jury that a defendant had invoked his right to counsel relative to the dictates of Miranda v. Arizona, 384 U.S. 436 (1966), which is rooted in the Fifth Amendment privilege against self- 6 incrimination. 6 In the present matter, we need not delve further into the debate whether the prohibition on the drawing of adverse inferences from a pre-arrest consultation with counsel is properly based on the Fifth, Sixth, or Fourteenth Amendments because, notably, the Commonwealth has not

2025STANDARD OF REVIEW A circuit court’s review of actions taken under KRS 15.520 has been described as “something less than a trial de novo – a quasi trial de novo as it were.” Stallins v. City of Madisonville, 707 S.W.2d 349, 350 (Ky. App. 1986).

2024ESG Capital Partners LP v. Stratos, 22 F. Supp. 3d 1042, 1045 (C.D.

2024ESG Capital Partners LP v. Stratos, 22 F. Supp. 3d 1042, 1045 (C.D.