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Taking the 5th

The defendant's on trial for felonious assault with a gun.  A gun isn't found, and there's no evidence that the defendant used one, other than the testimony of the victim and his girlfriend:  no gunshot residue test, no shell casings, no medical evidence consistent with a gunshot wound.  The defendant's son has been indicted in a separate case for tampering with evidence, under the theory that he was the one who hid the gun.  In the defendant's case, the prosecution wants to call the son as a witness.  The son's lawyer informs everybody that the son will take the 5th; the prosecutor calls him nonetheless.  Problem?

Yesterday, the 8th District ruled there was, in State v. Oldham, and reversed the defendant's conviction.  The case presented the question of whether the state can call a witness, knowing that he's going to invoke his 5th Amendment privilege.

The answer to that question isn't quite as clear as it probably should be.  I handled the appeal, and when I first researched the issue I was surprised to find that the two leading Ohio Supreme Court cases on it both dealt with whether the defendant could call a witness who was going to take the 5th.  There's dicta in several cases about a prosecutor not being allowed to do it, but nothing definitive in Ohio law.

The court does an excellent job going beyond Ohio law, summarizing the US Supreme Court rulings on it.  To be sure, they're not hard-and-fast rules, either; the court sums up the main test articulated in a 1963 USSC decision this way:

First, the Court stated that error may be based upon prosecutorial misconduct when the government makes a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege. Second, error may arise when, in the circumstances of a given case, inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.

What really sold that point in my case was the prosecutor himself; in closing argument, he'd addressed the issue of the son's invocation of the 5th Amendment as follows:

Gun. The big thing here is the gun is not recovered. Where is the gun? I think we know where the gun is. Mr. Reese [the defendant's son] had the gun. He told you he was - he told the defense he's under indictment for hiding the gun. It's called obstruction of justice. Okay. He tells you he was there, and he kind of told you his version of it, but then he decided to acknowledge his Fifth Amendment rights. You can make of that what you want.

He was a stand-up guy about it, though:  he readily acknowledged in oral argument that it wasn't his finest hour. 

A tip of the hat to the court: as far as Ohio cases go, Oldham is probably the most lucid exposition on the subject.  This type of situation is uncommon, but it does come up from time to time, so it's a good decision to keep handy.  The nice thing about it, too, is that it's pretty clear-cut, and it's unanimous.  It's been my experience that if a judge is presented with a legal question in the middle of a trial, he's going to be guided by two considerations:  First, he doesn't want to get reversed, and second, he doesn't want to spend a lot of time wading through a bunch of opinions to decide the question.  If you've got a situation where the state wants to put a witness who's going to take the 5th on the stand, and you can hand the judge a copy of Oldham and say, "Well, judge, that's the same thing the prosecutor did here, and the court of appeals reversed," that's probably all you're going to need to do.

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