Defendant privilege and the Menendez brothers retrial

Defendant Privileges

There are several different types of defendant privilege. One of which is the Fifth Amendment right to not testify if it will result in self-incrimination. This applies to both witnesses and defendants. Other forms of defendant privilege mean that others cannot testify against them -- including spouses, counsel, and doctors among them.

In most cases, defendant privilege refers to the Fifth Amendment right to avoid self-incrimination. Because it is part of the Constitution, it is widely applied. Privilege can be used in civil or criminal court and by both defendants and witnesses alike. In the case of the Menendez brothers, Fifth Amendment privileges were invoked by the brothers' lawyer, Leslie Abramson, during the retrial of the brothers.

The Menendez brothers had been tried for the murder of their parents. During the first trial, the two were tried together, but with separate juries. When the juries returned different verdicts, a retrial was ordered. During this retrial, Dr. William Vicary, a psychiatrist, testified that Abramson had forced him to alter his notes. Presiding Judge Stanley Weisberg requested that Abramson supply information about the notes, at which point she invoked witness privilege in order that she not testify on the issue.

Witness privilege in this case was invoked because Abramson's career would have been jeopardized had she testified that she had the psychiatrist's notes doctored. She could also have jeopardized the case. Her invocation of privilege was not to be taken as an admission of guilt. She was not sworn in and did not take the stand. Therefore, the jury was not made aware of Abramson's invocation.

The outcome of the retrial was that both brothers were convicted. The defense had motioned that the retrial was unfair because of the psychiatrist's testimony, but the mistrial motion was rejected by the justice. Ultimately, the brothers were convicted and both were sentenced to life in prison with no possibility of parole.

I believe the outcome of the trial was just, on two accounts. The first is that while the actions of Ms. Abramson may have clouded the jury's judgment with respect to the defense team's actions, she turned down the opportunity to absolve herself or the team of wrongdoing. Defendant privilege is intended to protect witnesses such as Ms. Abramson from prosecution or punishment to them. However, a witness invoking privilege does not invalidate the entire trial. The mistrial motion, had is succeeded, would have justified defense counsel impropriety as a means of gaining a retrial for clients. Furthermore, in this instance Ms. Abramson's invocation of privilege was not made known to the jury and therefore was not taken into consideration in their decision. She could have testified to refute the account of Mr. Vicary, had she so desired.