Criminal Contempt in New York: Refusal to Testify & Its Ramifications in a Criminal Case

In criminal trials in the state of New York, the People (a.k.a. the prosecution) bear the burden of proving that the defendant has committed the charged offense beyond any reasonable doubt. Obviously, the role of the criminal lawyer in New York is to controvert, challenge and poke holes in People’s case. Many times in criminal trials the strongest evidence of guilt in the prosecution’s arsenal is the direct testimony of a witness. Therefore the District Attorney’s Offices, whether it be one of the five borough/counties– Manhattan, Brooklyn/Kings, the Bronx, Staten Island/Richmond, or Queens– or surrounding counties– Westchester or Rockland — must be empowered to compel these “material witnesses” to testify. A subpoena is that legal tool, which empowers the State of New York to compel testimony by a witness. Of course, even if you’ve been subpoenaed to testify in a New York criminal trial, you don’t necessarily have to testify.

Most of us don’t need a NY criminal defense attorney to tell us what the Fifth Amendment is, but many times people do confuse the scope of the Amendment. The Fifth Amendment only protects individuals from self-incrimination. That is, if your boyfriend was charged with burglary and you are subpoenaed to testify as to his whereabouts on the night in question, but you had nothing to do with the burglary and your truthful testimony will in no way incriminate (admit guilt of a crime) you, then you can potentially be compelled to testify.

So what if you get up to the stand and still don’t cooperate? The answer to this question is what I want to highlight in this blog post. The court may hold you in Contempt. This is the strongest power a judge has to impose sanctions for acts which disrupt the court’s normal process and proper functioning. Criminal Contempt is an offense against judicial authority. The court will hold a hearing, called a contempt proceeding (where the individual in contempt can defend him/herself), if “the contemptuous behavior is primarily an offense to the court.” The primary purpose of a Criminal Contempt proceeding is to “protect the integrity of judicial process and compel respect for its mandates.”

A recent criminal case from Westchester County, People v. Selwyn Days, 01-0469, NYLJ 1202520880499, at *1 (Co., WE, Decided October 11, 2011) is a perfect illustration of the type of behavior by a witness that will result in that witness being held in contempt. Cherlyn Mayhew was a material witness in the Murder trial of Selwyn Days. Mayhew had testified in 2003 before the grand jury and also in the first trial, which ended in a hung jury. Mayhew did not testify in the second trial because she was unavailable due to sever illness, but Days was convicted. That conviction was overturned and in the third trial Mayhew refused to testify (although now healthy), so the prosecution compelled Mayhew to testify pursuant to a Material Witness Order. Yet again there was a mistrial, and in the fourth trial Mayhew again was compelled to testify. The Westchester County District Attorney’s Office flew her in to New York and paid for all travel expenses. However, on the stand Mayhew responded “I don’t remember” or “I don’t know” to every single question. She even claimed not remembering even testifying before the grand jury and in the first trial back in 2003. She claimed that her memory loss was due to Reflex Sympathetic Dystrophy (RSD)- the illness from which she suffered back in the second trial. Frustrated with the inconsistencies in the many testimonies especially after making so many accommodations for Ms. Mayhew, the court held a Criminal Contempt proceeding. After inquiring into the effects of the RSD illness and examining the evidence, the court found sufficient proof that Mayhew was “willful and contumacious in her failure to answer legal and proper questions posed and that she did not obey the mandate of the Material Witness Order.” In other words, Mayhew was held in Contempt because she completely feigned the memory loss so as to avoid answering the lawfully posed questions. The court found her guilty and punished her to 5 days in the Westchester County jail.

Though it may not seem like much (considering the small jail sentence), a judge has the power to hold a witness, who is attempting to obstruct the proper orders of the court, in Contempt. In Mayhew’s case, the court only gave her 5 days in jail. However, this Contempt does not merely go away and stays on your record for life.

To educate yourself about the criminal process and judicial system in New York, a review of this blog as well as following the links below will provide a strong starting point. Crotty Saland PC, a New York criminal defense firm founded by two former Manhattan prosecutors, represents witnesses and targets of arrest, indictments and criminal investigations throughout the New York City area.

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