Commonwealth v. Wright

Concurring Opinion by

Mr. Justice Roberts :

I concur in the result because, in my view, this case is plainly controlled by Commonwealth v. DuVal, 453 Pa. 205, 307 A.2d 229 (1973). There, five Justices of this Court were of the opinion that the defendant was “entitled to a new trial because the trial court, over timely objection, erroneously permitted the prosecutor to call [a witness] who the prosecutor knew would assert the privilege against self-incrimination.” Id. at 224, 307 A.2d at 238 (concurring opinion).^* This principle applies with equal force to the instant facts and requires that appellant he granted a new trial.

* The ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function (Approved Draft, 1971), emphatically condemns this practice.

“It is unprofessional conduct for a prosecutor to call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.” Id. § 5.7(c). Accord, United States v. King, 461 F.2d 53 (8th Cir. 1972) ; State v. Vega, 85 N.M. 269, 511 P.2d 755 (Ct. App. 1973). See also Commonwealth v. DuVal, 453 Pa. 205, 211-12 n.2, 307 A.2d 229, 231-32 n.2 (1973) (collecting cases).