Herndon v. Herndon, 368 N.C. 826 (Jun. 10, 2016)

Reversing the Court of Appeals, the court held that the trial court did not violate the defendant’s Fifth Amendment rights in connection with a civil domestic violence protective order hearing. During the defendant’s case-in-chief, but before the defendant took the stand, the trial court asked defense counsel whether the defendant intended to invoke the Fifth Amendment, to which counsel twice responded in the negative. While the defendant was on the stand, the trial court posed questions to her. The court noted that at no point during direct examination or the trial court’s questioning did the defendant, a voluntary witness, give any indication that answering any question posed to her would tend to incriminate her. “Put simply,” the court held, the “defendant never attempted to invoke the privilege against self-incrimination.” The court continued: “We are not aware of, and the parties do not cite to, any case holding that a trial court infringes upon a witness’s Fifth Amendment rights when the witness does not invoke the privilege.” The court further noted that in questioning the defendant, the trial court inquired into matters within the scope of issues that were put into dispute on direct examination by the defendant. Therefore, even if the defendant had attempted to invoke the Fifth Amendment, the privilege was not available during the trial court’s inquiry.