Lindsey v. United States

1987-11-02

Headline: Court declines to review challenge to prosecutors calling a witness who invokes the right to remain silent before the jury, leaving the appeals court’s decision allowing that practice in place.

Holding: The Court declined to review the appeals court’s ruling, leaving in place its judgment that permitting a prosecutor to call a witness who then invokes the Fifth Amendment in front of the jury was not reversible error.

Real World Impact:

Leaves appeals court ruling intact allowing prosecutors to call known-refusing witnesses before juries.
Permits juries to hear a witness refuse to answer despite a cautionary instruction.
Maintains differing rules across federal appeals courts until the Supreme Court addresses the issue.

Topics: self-incrimination, criminal trials, witness testimony, jury evidence

Summary

Background

The case arises from a mail fraud conviction. At trial, the Government called an unindicted co‑conspirator as a witness. That witness’s lawyer told the prosecutor and the judge that the witness would invoke the right to remain silent. The witness first asserted that right outside the jury’s presence, and then was called again before the jury, stated his name and residence, and refused to answer five questions by invoking the Fifth Amendment.

Reasoning

The main question is whether forcing a witness who will not testify to stand before the jury and invoke the right to remain silent violates the defendant’s rights under the Due Process and Confrontation Clauses. A panel of the Sixth Circuit said the trial court did not commit reversible error because the jury was given a cautionary instruction not to consider the refusal as evidence of guilt. Other federal appeals courts have taken a different view and treated the practice as error. The Supreme Court declined to review the case, so it did not resolve the disagreement among the appeals courts.

Real world impact

By refusing to take the case, the Supreme Court left the appeals court ruling intact in this matter, allowing the trial practice to stand in the Sixth Circuit. The split among federal appeals courts therefore remains, so defendants may face different outcomes depending on the appellate circuit. This denial is not a final ruling on the constitutional question and could be revisited if the Court later agrees to hear a similar case.

Dissents or concurrances

Justice White, joined by Justice Brennan, dissented from the denial and argued the Court should have reviewed whether this practice impermissibly pressures witnesses and unfairly prejudices defendants.