Waiver of Privilege Against Self-Incrimination

The constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals[i].  The Fifth Amendment of the U.S. Constitution provides privilege against self-incrimination which protects a witness from being compelled to disclose information that can be used against him/her as an accused in a criminal prosecution[ii].

Generally, a person has to claim the protection of privilege against self-incrimination, if s/he desires to have the same.  A witness is entitled to invoke the privilege against self-incrimination if the witness has reasonable cause to apprehend danger from a direct answer[iii].  It is to be noted that a privilege is deemed waived unless it is invoked.

Similarly, the privilege against self-incrimination is solely for the benefit of the witness and is purely a personal privilege of the witness.  However, an individual may lose the benefit of the privilege without making a knowing and intelligent waiver; if s/he simply fails to assert the privilege, it will be deemed waived[iv].

It is to be noted that, if a witness himself/herself elects to waive his/her privilege of self-incrimination and discloses his/her criminal connections, s/he is not permitted to stop, but must go on and make a full disclosure[v].  In other words, a party who voluntarily takes the witness stand in his/her own behalf waives the privilege against compulsory self-incrimination.

However, the privilege against self-incrimination can be invoked in any civil or criminal, administrative or judicial, investigatory or adjudicatory action or proceeding[vi].  A privilege against self-incrimination waiver is not partial, but complete[vii].  However, a waiver of one’s right against self-incrimination in one proceeding is not a waiver of the right in a separate proceeding[viii].  It is to be noted that a person who waived the privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding.

It was observed in United States v. Chase, 281 F.2d 225 (7th Cir. Ill. 1960), that a previous admission will not constitute a waiver of the witness’ privilege against self-incrimination.  It was also observed that defendants do not waive their right to invoke the privilege against self-incrimination when they agree to go before a grand jury and testify except to those questions which may incriminate them concerning federal offenses other than the specific offenses of which they stood convicted.

The waiver of the privilege against self-incrimination is not lightly to be inferred and vague or uncertain evidence will not support a finding of waiver[ix].  On the other hand, the privilege against self-incrimination is deemed waived unless invoked.

Further, the privilege of silence afforded by the Fifth Amendment is solely for the benefit of the witness and is deemed waived unless invoked.  The privilege may not be relied upon and will be deemed waived if not in some manner fairly brought to the attention of the tribunal which must pass upon it[x].

It is well established that a witness may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details in a single proceeding.  The privilege is waived for the matters to which the witness testifies, and the scope of the waiver is determined by the scope of relevant cross-examination[xi].  S/he has no right to set forth to the jury all the facts which tend in his/her favor without laying himself/herself open to a cross-examination upon those facts[xii].

It is to be noted that a defendant in a criminal case who takes the stand in his/her own behalf and testifies without asserting his/her privilege against self-incrimination waives the privilege as to the testimony given so that it may be used against him/her in a subsequent trial of the same case.  Only because the defendant does not take the stand at the second trial will not prevent the use of his/her testimony given at the former trial, if it is admissible[xiii].  The testimony of a defendant at a former trial is admissible in evidence against him/her in later proceedings and will not violate his/her constitutional privilege against compulsory self-incrimination[xiv].

[i] United States v. Judson, 322 F.2d 460 (9th Cir. Cal. 1963).

[ii] In re Interbanque, Inc., 1996 Bankr. LEXIS 1714 (Bankr. D.D.C. Mar. 28, 1996).

[iii] Choi v. State, 316 Md. 529 (Md. 1989).

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

[v] In re Interbanque, Inc., 1996 Bankr. LEXIS 1714 (Bankr. D.D.C. Mar. 28, 1996).

[vi] Krasney v. Nam (In re Nam), 245 B.R. 216 (Bankr. E.D. Pa. 2000).

[vii] Berner v. Schlesinger, 11 Misc. 2d 1024 (N.Y. Sup. Ct. 1957).

[viii] Krasney v. Nam (In re Nam), 245 B.R. 216 (Bankr. E.D. Pa. 2000).

[ix] Smith v. United States, 337 U.S. 137 (U.S. 1949).

[x] United States v. Thomas, 49 F. Supp. 547 (D. Ky. 1943).

[xi] Holman v. State, 372 Ark. 2 (Ark. 2007).

[xii] Brown V. United States, 356 U.S. 148 (U.S. 1958).

[xiii] Harbaugh v. Commonwealth, 209 Va. 695 (Va. 1969).

[xiv] Id.


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