Merely because other criminal defense lawyers represent the accused, does not mean they always have the best interests in mind for other criminal defendants. For instance, when co-defendants are charged with serious felony counts, the situation often looks like every man for himself as defendants ask their lawyers to line up to cut a deal with the prosecution, even when the deal will involve snitching against co-defendants.

Consequently, when felony defendant Juan Carlos Reyes’s lawyer sought to compel the trial testimony of co-defendant Marcos Guevara — who had already entered a guilty plea in the case and was awaiting sentencing — the trial court excluded Guevara from the witness stand after Guevara’s lawyer objected on Fifth Amendment grounds to Guevara’s testifying. Reyes v. Virginia, __ Va. App. __ (Oct. 25, 2016).

The trial court declined Reyes’s motion to present Guevara’s testimony. The trial court soundly “reasoned that although Guevara had pled guilty, he still faced exposure to increased punishment at sentencing, his potential answers could possibly implicate him for federal charges, and while Guevara was entitled to use immunity under Code § 19.2-270, the statute did not provide for derivative use immunity.” Reyes.

Virginia’s Court of Appeals affirmed the trial court’s refusal to compel Guevara’s testimony, concluding that the trial court “properly balanced appellant’s Sixth Amendment right to compel evidence in his favor against the witness’ Fifth Amendment right to be free from self-incrimination and we affirm the judgment of the court granting the motion to quash the subpoena for Guevara.” Reyes.