Robbins v. Small’s Empirical Analysis

Citation profile

11 federal appellate · 1 district · 8 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 29 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““[I]t is said that when a witness is asked whether he participated in criminal activity with the defendant, a refusal to answer based on the privilege against self-incrimination tends to imply to the jury that a truthful answer would be in the affirmative. This inference, the petitioner argues, cannot properly be used as evidence against a criminal defendant. * * * None of the several decisions dealing with this question suggests that reversible error is invariably committed whenever a witness claims his privilege not to answer. Rather, the lower courts have looked to the surrounding circumstances in each case, focusing primarily on two factors, each of which suggests a distinct ground of error. First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. * * * (Emphasis added.) A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant. * * And even when the objectionable inferences might have been found prejudicial, it has been held that instructions to the jury to disregard them sufficiently cured the error.” (Emphasis added.)”

   1 later decision quote this exact passage · from the majority
   e.g. State v. Goldman

2. “indirectly but effectively brought to the jury's attention the substance of a statement that was not in evidence and, therefore, not subject to cross-examination.”

   1 later decision quote this exact passage · from the majority
   e.g. United States v. Ackerly

3. “depend[ed] on whether the prosecutor's conduct in the interrogation of a witness at the trial deprived [the defendant] of his right of cross-examination.”

   1 later decision quote this exact passage · from the majority
   e.g. United States v. Ackerly