IANAL but I don’t think adverse is the right concept here, although it is a powerful psychological one, but rather proof. You are not to hold the defendant’s use of the 5th Amendment against them since they do not have to prove anything. The prosecution has the burden of proof so let’s see where this goes.
Cop testifies finding the drugs at the scene, blah blah blah
<Defense Attorney> Did you sign out 50 grams of cocaine out of the evidence locker one hour before you arrested my client?
<Cop> I invoke my 5th Amendment right.
<Defense Attorney> On February 30th, 2017, were you placed on adminstrative leave after an investigation showed you planted drugs on an arrestee?
<Cop> I invoke my 5th Amendment right.
<Defense Attorney> Did you at any time tell you partner to always carry drugs on his person “in case the perp is too broke to buy his own”?
<Cop> I invoke my 5th Amendment right.
I think as a juror it is permissable for me to say that the State did not prove beyond a reasonable doubt that the drugs belong to the defendant.
No, the reason you can’t hold the defendant’s use of the Fifth against him is because otherwise the right is meaningless. The defendant does have to prove something under certain circumstances - in some jurisdictions, the defendant has the burden of proving any affirmative defense.
Right. The jury may not draw any inference from the defendant’s invocation of his Fifth Amendment rights (with certain poorly defined limitations for post-arrest, pre-Miranda silence that aren’t really relevant here).
To be clearer: you’re confusing some concepts. It’s certainly permissible as a juror to reach the end of the trial and conclude, for whatever reason you like, that the state failed to prove its case beyond a reasonable doubt.
But there is a difference between “The cop didn’t say anything,” and “I’m entitled to conclude the damaging answer was said.”
Imagine that same set of questions and answers you wrote above is elicited against the partner – the cop on the witness stand is an unindicted conspirator of the partner and the prosecution offers this evidence to prove that the defendant (the partner) was corrupt:
<Prosecutor> Did you sign out 50 grams of cocaine out of the evidence locker one hour before you arrested Mr. Roe?
<Cop> I invoke my 5th Amendment right.
<Prosecutor> On February 30th, 2017, were you placed on adminstrative leave after an investigation showed you planted drugs on an arrestee?
<Cop> I invoke my 5th Amendment right.
<Prosecutor> Did you at any time tell the defendant, your partner, to always carry drugs on his person “in case the perp is too broke to buy his own”?
<Cop> I invoke my 5th Amendment right.
Can the jury hold the invocation of the Fifth Amendment against the other officer? In other words, can they infer that the answer to all those questions is damaging to the other officer?
It doesn’t have to be damaging. But I would hold it against the officer for not answering seeing how he is on the stand supposedly to provide evidence and now he’s refusing to provide it. However I would not hold the defendent using the fifth amendment against them as they do not need to provide evidence.
Why would the defence do that? If I were defence counsel, I would assert my client’s right to a speedy trial and require the prosecution to start the trial as quickly as possible. Then the prosecutor is on the spot: if they try to adjourn the trial, they’re running the risk of a stay based on trial delay. But if they run the trial right away, they have to call that dubious witness and let the defence counsel have at them, based on the video, which runs the risk of an adverse ruling on the witness’s reliability.
It’s not the job of the defence counsel to make the prosecution’s job easier. It’s to get their guy acquitted. Putting the prosecutor on the spot like that is a good tactic.
But the jury would never hear the accused invoke the Fifth. If the accused doesn’t testify, then the Fifth isn’t in issue. And if the accused does testify voluntarily, they wive their right to invoke the Fifth.
Unless it’s in some pre-trial recording of some sort?
ISTM that basically the third case, like the second, is arguing “I didn’t do it”. They can also argue “unlike the court, who would choose to believe a crooked cop, I **knew **the drugs were planted and the case was stacked against me and I couldn’t win, until this evidence appeared. I chose the path of least resistance.”
OTOH it would seem that the “reasonable doubt” may be enough to get a conviction overturned, but is no guarantee that specifically the perp was framed in a civil case.
Also, if the prosecution fails to call the police officer as a witness, then presumably the defense can instead.
the other reason why the fifth can be used to infer something against a witness - the witness is not on trial. The jury only is judging their reliability and facts of the other person’s case. Whereas, making an inference about a defendant means the difference between innocent and guilty. When the police get to their trial, they will have the same protection for themselves.