Selective Assertion of the Fifth Amendment Privilege

Suppose that an eyewitness testifies for the state on direct examination that he saw the defendant snatch an old woman's purse and run off. The defense cross-examines the witness about whether he'd used drugs shortly before the crime took place, hoping to show that the witness's perception was impaired. If the witness asserts his Fifth Amendment privilege against self-incrimination, how should the court respond? Allowing the witness to assert the privilege unfairly limits the defendant's right to confront and cross-examine the witness, but compelling the witness to answer unfairly requires the witness to incriminate himself. Cases and commentators have suggested a variety of possible responses, including (1) permitting the witness to assert the privilege, (2) permitting the witness to assert the privilege, but striking some or all of the witness's direct examination testimony in response, (3) permitting the witness to assert the privilege, but allowing the fact-finder to infer that the answer to the question would have been incriminating, and (4) requiring the witness to answer, on the theory that the witness waived the privilege by testifying on direct examination. The proper response may vary depending on whether the witness is also a party, e.g., the defendant, and on the nature of the question posed, e.g., whether the question relates to the facts of the case or only to the credibility of the witness. No single North Carolina case sets out a comprehensive approach to this issue, but we do have several relevant cases that provide some guidance. A defendant who [...]