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Assertion and Determination of Claim of Privilege

The fifth amendment to the U.S. Constitution protects witnesses from being forced to incriminate against themselves.  Such a privilege is not self-executing under the federal and the state law.  But it must be claimed appropriately when self-incrimination is threatened[i].

Therefore , a witness’s answers are not compelled within the meaning of fifth amendment, unless a witness is required to answer over his/her valid claim of privilege.  Further, if a witness under compulsion to testify makes disclosures, instead of claiming a privilege, the prosecution cannot be said to have compelled him/her to incriminate against themselves.  Fifth amendment permits a witness to refuse to answer any question put to him/her unless and until s/he is protected at least against the use of his compelled answers and evidence derived there from in any subsequent criminal case in which s/he is a defendant.  That protection extends to any proceeding, civil or criminal, formal or informal, where the answers might incriminate him/her in future criminal proceedings[ii].

Generally a witness must affirmatively claim his/her privilege against self-incrimination[iii].  However , there are three recognized circumstances under which a failure to assert one’s self incriminating privilege can be excused.  Normally, when external factors prevent a witness from exercising his/her freedom to admit deny or refuse to answer such exceptions are given.  The circumstances under which exceptions are given include[iv]:

  • when a failure occurred during unwarned custodial interrogation;
  • when an assertion of a right is penalized so as to foreclose a free choice to remain silent; or
  • when an individual fails to make disclosures in connection with occupational and excise taxes on gambling.


However, a defendant can affirmatively invoke a privilege against compelled self-incrimination in order to enjoy its protections.  Any failure to invoke a privilege does not preclude the benefit, if a defendant is placed in a situation where s/he is not free to admit, deny, or refuse to answer.  In such cases, a defendant’s privilege against self-incriminating is said to be self-executing[v].

Any testimony given by a witness without objection on the ground of privilege against self-incriminating will be deemed to be a waiver of a privilege and their evidence will be considered in reaching a proper conclusion.

With respect to the time and manner of asserting a privilege against self-incrimination, the courts have observed that it must be asserted in a manner that fairly brings it to the attention of a trial court and the court must then resolve it.  Although fear of self-incrimination may motivate a litigant to refrain from taking a witness stands in a civil case.  Privilege against self-incriminating is not always implicated automatically when a choice is made not to testify[vi].

The ordinary way of asserting a privilege against self-incriminating is on a question-by-question basis where a witness asserts a privilege in response to each allegedly incriminating question as it is asked.

A privilege against self-incriminating that is enjoyed by a witness is narrower than that of a defendant, and extends only to specific questions.  Unlike a criminal defendant, a witness cannot refuse to take a witness stand, instead they can invoke a privilege as to those specific questions to which his/her answers would incriminate him/her[vii].

Where a witness is compelled to testify, an interrogator must honor a privilege against self-incriminating and must seek a judicial determination as to the bona fides of a witness’s privilege claim.  A witness can prefer an appellate review against such determinations made in a trial court.  Appellate review arises not from the existence of a privilege, but from its invocation[viii].

[i] United States v. Ehrlich, 1998 U.S. Dist. LEXIS 8240 (E.D. Pa. May 27, 1998).

[ii] State v. Fuller, 276 Mont. 155 (Mont. 1996).

[iii] Rivera-Padilla v. Commonwealth, 55 Va. App. 304 (Va. Ct. App. 2009).

[iv]United States v. Swanson, 677 F. Supp. 2d 1030 (N.D. Ill. 2009).

[v] State v. Woods, 2005 MT 186 (Mont. 2005).

[vi] Burt Hill, Inc. v. Hassan, 2009 U.S. Dist. LEXIS 113144 (W.D. Pa. Dec. 4, 2009).

[vii] Davis v. Straub, 430 F.3d 281 (6th Cir. Mich. 2005).

[viii] Arnold v. Runnels, 421 F.3d 859 (9th Cir. Cal. 2005).

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