Whether the prosecution can call the defendant to the stand during its rebuttal when the defendant perviously took the stand during the defenses' case-in-chief and the prosecution had the opportunity to cross-examine the defendant?
There is case law that says you cannot call a defendant in punishment even if he waived his Fifth Amendment right in the guilt phase. I have successfully defended a prosecution where the State called a defendant in rebuttal rather than crossing him during defense case in chief. I'll see if I can find the case.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Brumfield v. State, 445 S.W.2d 732 (Tex. Crim. App. 1969) is the case where the CCA said our bifufcated system gave the defendant the right to silence in punishment even where he waived that right in guilt. The case where I was able to defend a prosecutor recalling a defendant in rebuttal was Nunez v. State, 2002 WL 1938988 (Tex. App.--El Paso Aug. 22, 2002, no pet.)(not designated for publication). That case involved a slow plea.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
What you have proposed has been identified as an erroneous procedure. It has been characterized as harmless because "in practical effect, the erroneous procedure accomplishe[s] nothing more than could have been done had the trial court granted a request to recall the defendant for further cross-examination." People v. Weaver (Cal. Ct. App. Sept. 9, 2011) (unpublished). The court further said: "Undoubtedly, the prosecution should have asked these rebuttal questions at a more appropriate time - to wit, during cross-examination or recross-examination. Nonetheless, we are at a loss as to how, as a practical matter, defendant was prejudiced by having to respond, albeit belatedly, to questions that would otherwise have been relevant and admissible as tending to undermine his direct examination testimony . . . ."
The Weaver case is non-binding in Texas, although it can be used as persuasive authority, but even if the prosecution recalls the defendant to the stand, may the defendant invoke the 5th and refuse to answer any questions?
Here's another semi-useless, unpublished case -- this time federal...
Barnum v. Calderon, No. CIV S-03-1385 LKKJFM, 2007 WL 1723608, at *11 (E.D. Cal. June 11, 2007)("The prosecution called petitioner back to the stand for rebuttal testimony. Because petitioner had voluntarily taken the stand in his own defense, the prosecution was entitled to cross-examine petitioner as well as to call him back to the stand for rebuttal.")
Thank you. I found this case among others, but like you said, "semi-useless, unpublished cases."
What I have gathered from my research is that it varies by jurisdiction. However, I have yet to find a SCOTUS or COA ruling on this issue.
quote:
Originally posted by Jimbeaux: Here's another semi-useless, unpublished case -- this time federal...
Barnum v. Calderon, No. CIV S-03-1385 LKKJFM, 2007 WL 1723608, at *11 (E.D. Cal. June 11, 2007)("The prosecution called petitioner back to the stand for rebuttal testimony. Because petitioner had voluntarily taken the stand in his own defense, the prosecution was entitled to cross-examine petitioner as well as to call him back to the stand for rebuttal.")
Assuredly, the recalled witness can assert a privilege as to any and all questions, but with the possible penalty of being held in contempt. This is why the defendant's stance should first be ascertained and considered outside the presence of the jury.
To complement an argument in favor of treating the rebuttal phase vis-à-vis the defense resting, as a distinction without a difference, you may want to use the observations made in Durham, No. 13-12-00394-CR (9/11/14).This message has been edited. Last edited by: Martin Peterson,
The more I think about this stuff, the less I think the Fifth Amendment has to do with it. Say, for example, the prosecutor forgot to ask D a question on cross. D steps down. Later, the State asks that he take the stand again to answer one more question (this is all during the Defense's case, btw). Whether to let the State do that would be in the judge's discretion, but the defendant would never be able to refuse on the basis of some made up privilege against self-incrimination. After all, he's already waived it (at least as to the guilt stage).
Rebuttal should be treated exactly the same. If it's truly for rebuttal, it seems like the question is easy.
But if it's not for a true rebuttal reason, it seems like more of a concern for the judge's control of his courtroom. The Defendant's Fifth Amendment rights shouldn't be the reason the State can't ask non-rebuttal questions on rebuttal. At that point, he's just like any other witness.
Posts: 143 | Location: Fort Worth | Registered: August 08, 2001
But suppose that the State has rested their case and so has the defense and before proceeding to closing, the state decides to rebut the defendant's testimony by recalling the defendant to the stand. Wouldn't the defendant be able to assert the 5th in this instance?
quote:
Originally posted by Jimbeaux: The more I think about this stuff, the less I think the Fifth Amendment has to do with it. Say, for example, the prosecutor forgot to ask D a question on cross. D steps down. Later, the State asks that he take the stand again to answer one more question (this is all during the Defense's case, btw). Whether to let the State do that would be in the judge's discretion, but the defendant would never be able to refuse on the basis of some made up privilege against self-incrimination. After all, he's already waived it (at least as to the guilt stage).
Rebuttal should be treated exactly the same. If it's truly for rebuttal, it seems like the question is easy.
But if it's not for a true rebuttal reason, it seems like more of a concern for the judge's control of his courtroom. The Defendant's Fifth Amendment rights shouldn't be the reason the State can't ask non-rebuttal questions on rebuttal. At that point, he's just like any other witness.
I'm not sure I understand why that should be. What magical thing has happened at trial that has obliterated his previous Fifth Amendment waiver? Surely not the mere fact that both sides rested, right?
I mean, the reason why his waiver doesn't carry over to the punishment stage is that different issues are involved at punishment -- so that makes sense. But this is still guilt. He's still a witness.
Maybe I'll amend my earlier remarks to say -- just maybe -- straying from proper rebuttal questions during a putative rebuttal recall of the defendant might violate his Fifth Amendment rights because it goes beyond the (implied) scope of his waiver. But that's fact-dependent, and it doesn't seem to be the gist of your original question.
Posts: 143 | Location: Fort Worth | Registered: August 08, 2001
