Herndon v. Herndon, 368 N.C. 826

Background

Husband (Steven Herndon) filed for a domestic violence protective order (DVPO) and temporary custody alleging wife (Alison Herndon) drugged him to leave the children and visit a paramour; court entered ex parte DVPO and temporary custody to husband.
Wife filed a separate custody action; at the combined hearing several witnesses testified, including a compelled witness (the paramour) who invoked the Fifth Amendment on questions about his relationship and texts.
Before the wife testified, the trial judge asked defense counsel whether the wife intended to invoke the Fifth Amendment; counsel said no. Wife then testified on direct about family matters, the affair, and whether she drugged her husband, and acknowledged some text messages and photos might be hers.
After direct, the judge denied plaintiff’s cross-examination time and instead asked the wife additional questions about the alleged April 11 drugging and exhibits; the judge later entered a DVPO and temporary custody for husband.
On appeal a divided Court of Appeals panel held the judge’s pre-testimony comments and questioning chilled the wife’s Fifth Amendment right and remanded for a new hearing; the Supreme Court reversed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court violated the Fifth Amendment by questioning whether defendant would invoke the privilege and then questioning her	Trial: No violation because defendant voluntarily testified and her direct testimony opened the topics questioned by the court	Defendant: Judge’s pre-testimony threats chilled her right to remain silent; she was effectively forced to choose between testifying or facing jail, so privilege was infringed	Court: Reversed COA; no constitutional violation because defendant voluntarily testified, addressed the disputed matters, and never invoked the privilege
Whether Brown v. United States requires a court to wait until after direct testimony to decide if the Fifth applies	Plaintiff: Brown allows inquiry into what the witness said on the stand; here the court’s questions were within scope of direct testimony	Defendant: Court’s pre-testimony comment compelled choice and Brown prohibits deciding privilege based solely on taking the stand	Court: Brown supports plaintiff; privilege assessment depends on what was said, but defendant’s direct testimony raised the disputed subjects so privilege would not have protected her from cross-exam on those matters
Whether Qurneh v. Colie controls to require dismissal or new hearing when a party invokes the Fifth in custody proceedings	Plaintiff: Qurneh is distinguishable—there the claimant invoked the privilege and used it to shield pertinent evidence	Defendant: Relied on Qurneh to argue she was forced to choose and thus chilled	Court: Distinguished Qurneh; here defendant did not assert the privilege, so Qurneh does not apply
Whether trial judge’s conduct requires remand despite lack of invocation or objection	Plaintiff: No; no constitutional issue was preserved by defense counsel and defendant never invoked privilege	Defendant: Judge’s improper statements warrant new hearing	Court: Although judge’s remarks were inappropriate, they did not amount to a constitutional violation given defendant’s voluntary testimony; COA erred to order new hearing

Key Cases Cited

Brown v. United States, 356 U.S. 148 (1958) (distinguishes compelled vs. voluntary witnesses and holds a voluntary witness opens subjects she introduces to cross-examination)
Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment privilege against self-incrimination is applicable to the states)
Hoffman v. United States, 341 U.S. 479 (1951) (scope of privilege protects against real, not speculative, dangers and is evident from implications of questions)
Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472 (1972) (privilege protects against answers that may tend to incriminate; protection need not be certain)
Allred v. Graves, 261 N.C. 31 (1964) (Fifth Amendment protection extends to civil proceedings under state law)
Qurneh v. Colie, 122 N.C. App. 553 (1996) (in custody contest, invoking Fifth while presenting affirmative proof may bar consideration of fitness and can justify adverse consequences)
State v. Pickens, 346 N.C. 628 (1997) (privilege claims should be liberally construed in North Carolina)