Criminal: BECKHAM V. COM. [COA 6/23/2006]

CRIMINAL:  Co-defendant’s testimony and Fifth Amendment privilege
DATE RENDERED: 6/23/2006

Beckham raised on appeal he was denied his rights to present a defense and to compel witnesses in his favor when the trial court erroneously granted Fifth-Amendment immunity to a codefendant Beckham desired to call as a witness and that the court erred by excluding evidence concerning the codefendant’s guilty plea. COA affirmed agreeing with the trial court that the codefendant validly asserted her Fifth-Amendment privilege and held the other alleged error was not properly preserved for review.

It is, of course, a serious error for the Commonwealth to introduce evidence of a codefendant’s guilty plea as substantive evidence of the defendant’s guilt. Such evidence deprives the defendant of his right “to have the question of his guilt determined upon the evidence against him, not on whether a codefendant or government witness has been convicted of the same charge.” And it is highly prejudicial, the jury being apt to “‘regard the issue of the remaining defendant’s guilt as settled and the trial as a mere formality.’”

While arguing that evidence of the co-defendant’s guilty plea should not have been introduced at all, once the Commonwealth introduced it he had a right to cure the admission by questioning the co-defendant about her plea and about the events leading to her arrest in an attempt to show that her plea had more to do with her pregnancy and her fear of going to jail than with her admission of guilt. Tthe introduction of inadmissible evidence by one party allows an opponent, in the court’s discretion, to introduce evidence on the same issue to rebut any false impression that might have resulted from the earlier admission.

The trial court correctly ruled, therefore, that the co-defendant’s guilty plea did not extinguish her Fifth-Amendment privilege.

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