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In a recent S.C. Court of Appeals opinion, the court had to analyze the Sixth Amendment rights of a defendant vs. the Fifth Amendment rights of a co-defendant. Under the Sixth Amendment, a defendant has a strong right to present a full case of evidence and call witnesses as may be necessary to present a full defense. However, if a defendant wishes to call a co-defendant as a witness, then his Sixth Amendment rights will run up against the co-defendant's Fifth Amendment right to remain silent.
The Standard
But the question will become: how does a trial judge determine if a co-defendant's potential testimony is incriminating enough that they may invoke the Fifth? The court explains that the co-defendant cannot merely state that the potential testimony is incriminating. Rather, the trial judge must make a finding and make that determination themselves:
The Procedure
It is clear from above what the standard a trial judge should use when determining if the potential testimony is incriminating. But how does the trial judge actually hear that testimony in order to weight the standard? The court explained that it is not an easy process and it may be a tough balancing act:
