A 41-year old man was convicted after a jury trial of criminally selling heroin arising from two separate transactions. The sales, according to the records of the case, were made to an undercover police officer. The transactions were closely monitored, and recorded by tape and video. These evidence resulted to overwhelmingly proving the guilty participation of the defendant in the drug crimes.
The records of the case showed that the initial contact by the undercover police officer was made through a man known to the police as a major narcotics dealer. The dealer, who was already under federal indictment at the time of the transaction, acted as an agent of the police and arranged for the defendant to meet with the drug dealer. The informant had been brought to court as a potential defense witness but was interviewed in chambers without the presence of defense counsel or the district attorney. The trial court opined that the informant’s testimony might be beneficial to the defense but the informant declined to testify unless granted immunity, which immunity the D.A. refused to confer. The informant then refused to testify, claiming his constitutional right to remain silent.
The defendant, however, argued that he was prejudiced in the presentation of his case by his inability to call an undercover informant to testify. He said this inability constitutes reversible error.
The counsel for the defense attempted to introduce alleged exculpatory statements tending to show a defense of entrapment via an interview held between defendant and his attorney. That interview took place after the narcotics sale but before the arrest. The appellate court that the county court properly denied the admissibility of those statements since they clearly were self-serving.
At question in the case is whether the informant can claim Fifth Amendment immunity and, furthermore, whether the failure of the D.A. to confer immunity, warrants reversal of the conviction.
The appellate court noted that an agent of a governmental authority, when questioned about occurrences related to his official duty, has the right to claim his Fifth Amendment privilege. The right to assert this privilege is the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty for such silence.
In the case at bar, the informant, though acting as an informer for the police, did not lose his right to claim his Fifth Amendment privilege. The appellate court pointed out that it is possible that the informant, while performing his duties on behalf of the police, also performed criminal acts. He thus has a right to protect himself against prosecution because of his performance of those acts.
In addition, the informant had already testified in the trial court’s chambers regarding the subject drug transaction. Defense counsel has conceded on the record that the informant’s testimony would give at the trial was substantially different from the testimony he already gave in the trial court. He would therefore be exposing himself to a possible perjury indictment which even a grant of transactional immunity, requested by the D.A. and conferred by the court, could not prevent, the appellate court noted.
However, the appellate court explained that the mere right of a witness to assert his Fifth Amendment privilege does not reach the question as to whether defendant was able nonetheless to get a fair trial. In view of the overwhelming evidence against defendant and in view of the conjectural nature of the missing testimony of the informant, the appellate court ruled that the failure to grant immunity constituted reversible error.
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