The Fifth Amendment to the U.S. Constitution provides that a person cannot be compelled in a criminal trial to be a witness against herself. What happens when someone who is not the defendant but a witness at trial faces self-incrimination if compelled to testify was explored by Maryland’s intermediate appellate Court in a recent unreported opinion in a case called Steven Lee Allen v. State of Maryland.
Allen was appealing convictions for attempted manufacture of a controlled dangerous substance (methamphetamine) and possession of drug paraphernalia. The State Police came to a trailer to serve an arrest warrant on Allen, but he fled into the woods. The police then spoke with a witness sitting nearby, Rachel Smith, who told them that Allen lived in the trailer and made meth there. At trial, she was the only non-police officer called to testify.
While she was on the witness stand, the trial judge became concerned that some of the prosecutor’s questions might raise Mr. Smith’s 5th amendment right not to be compelled to incriminate herself, and held a hearing outside the presence of the jury. The prosecutor said that if necessary he would grant her immunity, but never did so, and the trial judge ultimately found that Smith’s testimony would not incriminate her. Despite her assertion of her 5th amendment rights, the judge ordered her to answer the prosecutor’s questions. She testified that he saw Smith both manufacture and sell methamphetamine.
The appellate Court found that the judge erred in compelling the witness to testify despite her asserting her 5th amendment rights. In order to compel such a witness to testify, it must be perfectly clear that the testimony cannot possibly have a tendency to incriminate the witness. Here, the appellate Court found, her testimony that she actually was present and saw Allen commit his crimes, while not directly implicating her could be “a link in the chain of evidence to support a conclusion” that the witness herself was also guilty of a crime.
Even though Allen was not the person being compelled to testify, the appellate court found that the witnesses testimony was so important in proving his guilt that compelling this testimony over 5th amendment objections deprived Allen of a fair trial and his due process rights. This illustrates how the Courts address the 5th amendment rights even of persons who are merely witnesses in criminal trials.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.