ACCA: Counsel can't comment on witness's invocation of Fifth Amendment rights

ACCA yesterday released a published opinion in United States v. Christopher Matthews, __ M.J. ___, No. ARMY 20030404 (A. Ct. Crim. App. May 21, 2008). Fortunately the last name has one too many "t"s to be our own Judge Mathews the Greatest.

The central issue in Matthews is whether a trial counsel's rebuttal argument could properly comment on a defense witness's 13 invocations of his Fifth Amendment rights while being crossed and whether the military judge (who was the trier of fact) could draw an adverse inference based on those invocations. No, held ACCA.

The government's theory was that then-Staff Sergeant Gibson was involved in SPC Matthews' plan to confront SGT Freeman about a suspected affair with SPC Matthews' wife and that SSG Gibson and another Soldier restrained SGT Freeman from fleeing before SPC Matthews pistol-whipped him.

By the time of SPC Matthews' trial, SSG Gibson had become PVT Gibson. PVT Gibson appeared as a defense witness on the merits. The TC attempted to cross-ex PVT Gibson about unrelated misconduct that went to his credibility. PVT Gibson refused to answer, instead invoking the Fifth 13 times. The TC moved to strike PVT Gibson's testimony, but the military judge denied the request.

During the TC's rebuttal argument, the military judge overruled a defense objection to the TC's commentary of PVT Gibson's invocation of his Fifth Amendment rights. In an ex parte conversation, the military judge told the civilian and military defense counsel that he had considered PVT Gibson's invocation of his Fifth Amendment rights in determining his credibility.

ACCA ruled that the military judge erred by allowing the TC to comment on PVT Gibson's invocation of his Fifth Amendment rights and by taking those invocations into account in assessing PVT Gibson's credibility. The court ruled that Military Rule of Evidence 301(f) prohibits such uses, though under that rule the military judge could have granted the TC's motion to strike PVT Gibson's testimony in whole or in part.

ACCA rejected the military judge's rationale that he could consider the invocations pursuant to Military Rule of Evidence 512(a)(2), which includes an "interests of justice" exception to the general prohibition on commenting on claims of privilege. ACCA reasoned that Rule 512(a)(2) is a general provision governing all privileges while Rule 301(f) deals specifically with the privilege against self-incrimination. ACCA ruled that the specific provision trumps the general one. Matthews, No. ARMY 20030404, slip op. at 7.

But ACCA went on to rule that the erroneous uses of PVT Gibson's invocations were harmless beyond a reasonable doubt and affirmed the findings and sentence, making it unlikely that this issue will receive further review in this case.

Senior Judge Zolper wrote for a unanimous panel.