MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part V(B). Witnesses - Part V(B) 1. Witnesses: 5th Amendment Privilege Against Self Incrimination

        Part V(B)1   5th Amendment Privilege Against Self Incrimination: General Principles
        Part V(B)1a 5th Amendment Privilege Against Self Incrimination: Grounds For Invoking Privilege
        Part V(B)1b 5th Amendment Privilege Against Self Incrimination: Corporations And Other Collective Entities Cannot Assert Privilege
        Part V(B)1c 5th Amendment Privilege Against Self Incrimination: Sole Proprietor Cannot Claim Privilege For Records Kept As Required By Law
        Part V(B)1d 5th Amendment Privilege Against Self Incrimination: Waiver Of Privilege By Witness
        Part V(B)1e 5th Amendment Privilege Against Self Incrimination: Waiver Of Privilege By Testifying Defendant
        Part V(B)1f  5th Amendment Privilege Against Self Incrimination: Requiring Defendant To Give Certain Evidence Does Not Violate Privilege
        Part V(B)1g 5th Amendment Privilege Against Self Incrimination: Prosecution Witness May Invoke Privilege On Cross-Examination
        Part V(B)1h 5th Amendment Privilege Against Self Incrimination: Court Should Be Alert To Any Indication That Witness Wishes To Invoke Privilege
        Part V(B)1i  5th Amendment Privilege Against Self Incrimination: Trial Court Must Determine Whether Privilege Has Been Properly Invoked
        Part V(B)1j  5th Amendment Privilege Against Self Incrimination: Blanket Assertions Of Privilege Are Usually Not Allowed
        Part V(B)1k 5th Amendment Privilege Against Self Incrimination: Witness Not To Be Called If It Is Known He Or She Will Claim Privilege
        Part V(B)1l  5th Amendment Privilege Against Self Incrimination: Effect Of Grant Of Immunity
        Part V(B)1m  5th Amendment Privilege Against Self Incrimination: Defendant May Or May Not Be Able To Claim Privilege After Pleading Guilty
        Part V(B)1n  5th Amendment Privilege Against Self Incrimination: Comment In Argument After Assertion Of Privilege

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 1    Witnesses: Fifth Amendment Privilege Against Self-Incrimination: General Principles

CAVEAT: See Publication Preface and Caveats.

18.3.5 Defendant Has Right To Instruction On Privilege Against Self Incrimination Even If Defendant

25.16.6 View That Jury May Consider 5th Amendment Privilege Against Self Incrimination On Issue Of Credibility

25.16.10 Prosecution Witness Precluded From Claiming Privilege Against Self Incrimination In Front Of Jury

25.16.12 Claim Of Privilege Against Self Incrimination By Defense Witness: Strategy For Defeating Privilege Claim

45.3.2 Proof Of Intent Instruction: Improper Comment On Defendant's 5th Amendment Privilege Against Self Incrimination

300.23 Privilege Against Self Incrimination (5th Amendment)

A witness has the privilege under the Fifth Amendment to decline to respond to a question the answer to which would tend to incriminate him or her, that is, would tend to indicate that the witness was guilty of a crime or would furnish a link in the chain of evidence needed to prosecute the witness for a crime.

The privilege protects an individual's right to refuse to give information that is compelled, testimonial, and incriminating.

United States v. Doe, 465 U.S. 605 (1984)
United States v. Hubbell, 530 U.S. 27 (2000)
Ciccone v. H.H.S., 861 F.2d 14 (2d Cir. 1988)

Doe v. United States, 487 U.S. 201 (1988)
Pennsylvania v. Muniz, 496 U.S. 582 (1990)

The privilege may be asserted in any type of proceeding, administrative or judicial, investigatory or adjudicative.

National Life Ins. Co. v. Hartford Acc. and Indem. Co., 615 F.2d 595 (3d Cir. 1980)
In re Corrugated Container Antitrust Litig., 620 F.2d 1086 (5th Cir. 1980)
In re Corrugated Container Antitrust Litig., 661 F.2d 1145 (7th Cir. 1981), aff'd, Pillsbury Co. v. Conboy, 459 U.S. 248 (1983)
Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067 (6th Cir. 1990)

The privilege protects a federal witness from incrimination under state as well as federal law.

F.D.I.C. v. Sovereign State Capital, Inc., 557 F.2d 683 (9th Cir. 1977)
United States v. Damiano, 579 F.2d 1001 (6th Cir. 1978)
In re Grand Jury Proceedings, 860 F.2d 11 (2d Cir. 1988)

Mitchell v. United States, 526 U.S. 314 (1999)

Neither defense nor government counsel may claim the privilege for a witness. The privilege is a personal one and must be invoked by the witness.

United States v. Mayes, 512 F.2d 637 (6th Cir. 1975)
United States v. Lightly, 677 F.2d 1027 (4th Cir. 1982)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Part V(B) 1a    Witnesses: Fifth Amendment Privilege Against Self-Incrimination: Grounds For Invoking Privilege

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300.23 Privilege Against Self Incrimination (5th Amendment)

The privilege is confined to instances in which the witness has reasonable cause to apprehend a danger of self-incrimination from compelled answers to questions.

United States v. Kuh, 541 F.2d 672 (7th Cir. 1976)
In re Grand Jury Proceedings (Buckley), 860 F.2d 11 (2nd Cir. 1988)
United States v. Hatchett, 862 F.2d 1249 (6th Cir. 1988)
But see United States v. Trupin, 117 F.3d 678 (2d Cir. 1997)

To assert the privilege, a claimant must be confronted by substantial and real, not merely trifling or imaginary, hazards of incrimination.

United States v. Apfelbaum, 445 U.S. 115 (1980)
United States v. Rubio-Topete, 999 F.2d 1334 (9th Cir. 1993)

Fear for the safety of oneself or others is not a ground for refusing to testify.

Piemonte v. United States, 367 U.S. 556 (1961)
United States v. Damiano, 579 F.2d 1001 (6th Cir. 1978)
United States v. Seifert, 648 F.2d 557 (9th Cir. 1980)
In re Grand Jury Proceedings (Burns0, 652 F.2d 413 (5th Cir. 1981)
In re Grand Jury Proceedings (Doe), 943 F.2d 132 (1st Cir. 1991)

However, fear of reprisal for testifying may be a defense to confinement for civil contempt if it is subjectively and objectively genuine and reasonable.

In re Grand Jury Proceedings (Mallory), 797 F.2d 906 (10th Cir. 1986)
In re Grand Jury Proceedings (Doe), 862 F.2d 430 (2d Cir. 1988)
Matter of Grand Jury Proceedings of Dec. 1989, 903 F.2d 1167 (7th Cir. 1990)
In re Grand Jury Proceeding (Doe), 13 F.3d 459 (1st Cir. 1994)

Fear of prosecution by a foreign state is not a ground for invoking the privilege unless there is a real and substantial possibility of such prosecution.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 1b    Witnesses: Fifth Amendment Privilege Against Self-Incrimination: Corporations And Other Collective Entities Cannot Assert Privilege

CAVEAT: See Publication Preface and Caveats.

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300.23 Privilege Against Self Incrimination (5th Amendment)

A corporation or other collective entity has no privilege against self-incrimination. Neither a corporation nor its officers may prevent production of relevant corporate records by asserting a corporate privilege against self-incrimination.

Bellis v. United States, 417 U.S. 85 (1974)
Fisher v. United States, 425 U.S. 391 (1976)
Braswell v. United States, 487 U.S. 99 (1988)
United States v. Sourapas, 515 F.2d 295 (9th Cir. 1975)
In re Grand Jury Proceedings United States, 626 F.2d 1051 (1st Cir. 1980)
United States v. Alderson, 646 F.2d 421 (9th Cir. 1981)
United States v. Harrison, 653 F.2d 359 (8th Cir. 1981)
In re Grand Jury Subpoena Duces Tecum, 795 F.2d 904 (11th Cir. 1986)

A corporate custodian may not resist a subpoena for corporate records on the ground that the act of producing them has independent testimonial significance that will incriminate him or her individually. Because the custodian acts as a corporate representative, his or her act of production is deemed an act of the corporation, which has no Fifth Amendment privilege.

Braswell v. United States, 487 U.S. 99 (1988)

However, certain evidentiary consequences flow from the fact that the corporate custodian's act of production is deemed one in his or her representative, rather than individual, capacity. Since the custodian's act of production is deemed an act of the corporation, the government may not make evidentiary use of that act in a proceeding brought against the custodian in his or her individual capacity. For example, in a criminal prosecution against the custodian in his or her individual capacity, the government may not introduce evidence before the jury that the subpoena was served on the custodian-defendant or that the corporate records were delivered by the custodian-defendant. However, the government could make evidentiary use of the corporation's act of production in that proceeding. Thus, the jury would be entitled to infer from other evidence presented in the case that if the individual custodian-defendant held a prominent position in the corporation that produced the records, he or she also had possession of the documents or knowledge of their contents.

Braswell v. United States, 487 U.S. 99 (1988)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 1c    Witnesses: Fifth Amendment Privilege Against Self-Incrimination: Sole Proprietor Cannot Claim Privilege For Records Kept As Required By Law

CAVEAT: See Publication Preface and Caveats.

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300.23 Privilege Against Self Incrimination (5th Amendment)

If the records kept by a sole proprietor are required by law or regulation to be kept and fall within the required-records exception to the Fifth Amendment privilege, the sole proprietor may not rely on the Fifth Amendment when the records are required to be produced.

Shapiro v. United States, 335 U.S. 1 (1948)
In re Grand Jury Proceedings, 601 F.2d 162 (5th Cir. 1979)
In re Doe, 711 F.2d 1187 (2d Cir. 1983)
In re Kenny, 715 F.2d 51 (2d Cir. 1983)
In re Grand Jury Subpoena Duces Tecum Served upon Underhill, 781 F.2d 64 (6th Cir. 1986)
In re Grand Jury Subpoena (Spano), 21 F.3d 226 (8th Cir. 1994)
But see Smith v. Richert, 35 F.3d 300 (7th Cir. 1994)

For records to meet the required-records exception to the Fifth Amendment, the purpose of the government's record-keeping requirement must be essentially regulatory rather than criminal, the records must contain the type of information that a regulated party would ordinarily keep, and the records must have assumed public aspects that render them at least analogous to public documents.

Grosso v. United States, 390 U.S. 62 (1968)
In re Grand Jury Subpoena Duces Tecum Served upon Underhill, 781 F.2d 64 (6th Cir. 1986)
In re Grand Jury Proceedings, 801 F.2d 1164 (9th Cir. 1986)
United States v. Lehman, 887 F.2d 1328 (7th Cir. 1989)
In re Grand Jury Subpoena, 21 F.3d 226 (8th Cir. 1994)
Smith v. Richert, 35 F.3d 300 (7th Cir. 1994)

The required-records exception does not apply where the purpose of the record-keeping requirement is the detection of criminal activity.

Grosso v. United States, 390 U.S. 62 (1968)
Bionic Auto Parts and Sales, Inc. v. Fahner, 721 F.2d 1072 (7th Cir. 1983)

Although the contents of the voluntarily kept business records of a sole proprietorship are not privileged under the Fifth Amendment, the sole proprietor's act of producing or authenticating the records may be privileged.

If a claim of privilege is raised by a sole proprietorship and the court determines that the act of producing the subpoenaed documents involves testimonial self-incrimination, the court must deny enforcement of the subpoena.

United States v. Doe, 465 U.S. 605 (1984)
United States v. Hubbell, 530 U.S. 27 (2000)
Rogers Transp., Inc. v. Stern, 763 F.2d 165 (3d Cir. 1985)
But see In re Grand Jury Subpoena (Spano), 21 F.3d 226 (8th Cir. 1994)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

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300.23 Privilege Against Self Incrimination (5th Amendment)

If a witness falls to invoke the privilege in response to a question on which he or she could have claimed it, the witness is deemed to have waived the privilege as to all questions on the same subject matter.

United States v. O'Henry's Film Works, Inc., 598 F.2d 313 (2d Cir. 1979)

Once incriminating facts are voluntarily revealed, the privilege may not be invoked to avoid disclosure of details.

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978)
United States v. MacCloskey, 682 F.2d 468 (4th Cir. 1982)
United States v. Green, 757 F.2d 116 (7th Cir. 1985)

Several circuits have held that a witness may waive his or her Fifth Amendment privilege before a grand jury, yet claim the privilege at trial. These circuits limit the waiver to the proceeding in which the waiver is made.

United States v. Licavoli, 604 F.2d 613 (9th Cir. 1979)
United States v. James, 609 F.2d 36 (2d Cir. 1979)
United States v. Fortin, 685 F.2d 1297 (11th Cir. 1982) (waiver to plead guilty did not waive privilege in other criminal trial)
In re Morganroth, 718 F.2d 161 (6th Cir. 1983)

However, the District of Columbia Circuit has held that "a witness who voluntarily testifies before a grand jury without invoking the privilege against self-incrimination, of which he has been advised, waives the privilege and may not thereafter claim it when he is called to testify as a witness at the trial on the indictment returned by the grand jury, where the witness is not the defendant, or under indictment." Nevertheless, the witness "may object to any question that would require disclosure of new matter of substance."

Ellis v. United States, 416 F.2d 791 (D.C. Cir. 1969)
United States v. Miller, 904 F.2d 64 (D.C. Cir. 1990)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

300.23 Privilege Against Self Incrimination (5th Amendment)

A defendant who takes the stand waives any Fifth Amendment privilege regarding cross-examination relevant to the issues raised by his or her direct testimony.

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978)
United States v. Green, 757 F.2d 116 (7th Cir. 1985)

The breadth of the waiver is determined by the scope of relevant cross-examination. The extent of the cross-examination is within the discretion of the court. The defendant may not claim the privilege against cross-examination on matters reasonably related to the subject matter of his or her direct examination. Like any other witness, the defendant may have his or her credibility impeached and his or her testimony assailed.

Brown v. United States, 356 U.S. 148 (1958)
United States v. Hernandez, 646 F.2d 970 (5th Cir. 1981)
United States v. Green, 648 F.2d 587 (9th Cir. 1981)

If a defendant testifies on his or her own behalf but refuses to answer relevant questions on cross-examination, the trial court may properly advise the jury that it may consider the defendant's refusal in assessing his or her credibility or, alternatively, the court may strike the defendant's testimony in whole or in part.

United States v. Panza, 612 F.2d 432 (9th Cir. 1979) (court's discretion must be guided by reason and fairness; before striking testimony, court should warn defendant that defendant's testimony will be stricken if he or she persistently refuses to answer proper questions on cross-examination)
United States v. Silva, 611 F.2d 78 (5th Cir. 1980)

If the defendant has testified, the government may comment on the defendant's refusal to answer proper questions during closing argument.

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978)
United States v. Panza, 612 F.2d 432 (9th Cir. 1979)
United States v. Silva, 611 F.2d 78 (5th Cir. 1980)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 1f    Witnesses: Fifth Amendment Privilege Against Self-Incrimination: Requiring Defendant To Give Certain Evidence Does Not Violate Privilege

CAVEAT: See Publication Preface and Caveats.

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300.23 Privilege Against Self Incrimination (5th Amendment)

A defendant's right against self-incrimination is not violated when he or she is required to give handwriting or voice samples, to don certain clothing, to stand in court, or to provide hair samples.

At the time of trial, the defendant may be compelled to don a mask or wig or other apparel, to remove certain clothing, or to display a scar.

United States v. Turner, 472 F.2d 958 (4th Cir. 1973)
United States v. Murray, 523 F.2d 489 (8th Cir. 1975)
United States v. Walitwarangkul, 808 F.2d 1352 (9th Cir. 1987)
United States v. Robertson, 19 F.3d 1318 (10th Cir. 1994)

Requiring a suspect to reveal the physical manner in which he articulates words (e.g., slurring speech) does not, without more, violate the privilege.

Pennsylvania v. Muniz, 496 U.S. 582 (1990)

The defendant may also be required to give voice exemplars by speaking the exact words spoken at the crime.

United States v. Wade, 388 U.S. 218 (1967)
United States v. Delaplane, 778 F.2d 570 (10th Cir. 1985)
United States v. Domina, 784 F.2d 1361 (9th Cir. 1986)
United States v. Leone, 823 F.2d 246 (8th Cir. 1987)
Burnett v. Collins, 982 F.2d 922 (5th Cir. 1993)
United States v. Oriakhi, 57 F.3d 1290 (4th Cir. 1995)

The defendant may be ordered to shave prior to trial or to return his hair to its dyed state at the time of the crime.

United States v. Valenzuela, 722 F.2d 1431 (9th Cir. 1983)
United States v. Brown, 920 F.2d 1212 (5th Cir. 1991)

The circuits are split as to whether a defendant may be compelled to write words dictated to him or her. The Ninth Circuit has held that the defendant may be compelled to do so.

United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976)

The First Circuit has held that the defendant may not be compelled to do so because the defendant is in effect being compelled to testify: "This is the way I spell these words."

United States v. Campbell, 732 F.2d 1017 (1st Cir. 1984)

The compelled execution of a consent form directing disclosure of foreign bank records does not violate the Fifth Amendment. The privilege protects only against incrimination by compelled, testimonial communications. The act of executing such a consent form does not involve testimonial compulsion because it does not by itself relate a factual assertion or disclose information to the government.

United States v. Doe, 465 U.S. 605 (1984)
Doe v. United States, 487 U.S. 201 (1988)

See Part V(A) 6 [Requiring Defendant To Display Body Or To Don Clothing: Examples].

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

25.16.10 Prosecution Witness Precluded From Claiming Privilege Against Self Incrimination In Front Of Jury

25.16.11 Prosecution Witness Claim Of 5th Amendment Privilege On Cross-Examination

A prosecution witness may invoke the privilege even though the question asked of the witness on cross-examination is a proper one.

United States v. Dooley, 587 F.2d 201 (5th Cir. 1979)

When a non-party government witness invokes the Fifth Amendment on cross-examination, the court should permit the assertion of the privilege in the presence of the jury in order to allow the jury to draw adverse inferences from his or her silence.

United States v. Seifert, 648 F.2d 557 (9th Cir. 1980)
United States v. Kaplan, 832 F.2d 676 (1st Cir. 1987)
But see United States v. Gary, 74 F.3d 304 (1st Cir. 1996)

If a prosecution witness's claim of privilege is sustained, the court may strike the witness's testimony in whole or in part.

Fountain v. United States, 384 F.2d 624 (5th Cir. 1967)
United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979)
United States v. Seifert, 648 F.2d 557 (9th Cir. 1980)
Lawson v. Murray, 837 F.2d 653 (4th Cir. 1988)

If a prosecution witness claims the privilege when questioned on collateral or cumulative matters by defense counsel, his or her testimony on direct examination need not be stricken.

United States v. DiGiovanni, 544 F.2d 642 (2d Cir. 1976)
United States v. La Riche, 549 F.2d 1088 (6th Cir. 1977)
United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979)

If a prosecution witness gives damaging testimony on direct examination but severely limits cross-examination by claiming the privilege, the defendant may be entitled to a mistrial.

United States v. Demchak, 545 F.2d 1029 (5th Cir. 1977)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 1h    Witnesses: Fifth Amendment Privilege Against Self-Incrimination: Court Should Be Alert To Any Indication That Witness Wishes To Invoke Privilege

CAVEAT: See Publication Preface and Caveats.

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300.23 Privilege Against Self Incrimination (5th Amendment)

The privilege may be exercised in a variety of ways: the witness may refuse to answer the question, ask the court or the attorney if he or she has to answer, mention the Fifth Amendment, or simply remain silent. Whenever the court concludes that the witness may be attempting to invoke the privilege, the court should ask the witness whether he or she desires to claim the privilege or wants to consult an attorney. The court may adjourn the trial in order to give the witness time to consult an attorney.

United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1971)
United States v. Colyer, 571 F.2d 941 (5th Cir. 1978)

Although there is no duty to advise a witness of his or her right not to incriminate himself or herself, it is entirely proper for the court to do so.

United States v. Morrison, 535 F.2d 223 (3d Cir. 1976)
United States v. Silverstein, 732 F.2d 1338 (7th Cir. 1984)

The court should not, however, assume that the witness will claim the privilege. The witness must claim it.

United States v. Colyer, 571 F.2d 941 (5th Cir. 1978)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Part V(B) 1i     Witnesses: Fifth Amendment Privilege Against Self-Incrimination: Trial Court Must Determine Whether Privilege Has Been Properly Invoked

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300.23 Privilege Against Self Incrimination (5th Amendment)

The criterion to be applied by the trial court in determining whether the Fifth Amendment has been properly invoked is the possibility of prosecution of the witness rather than the likelihood of prosecution. In other words, the court is not to try to determine whether it is likely or not likely that the witness will be prosecuted but rather whether it is possible that the witness will be prosecuted.

The trial judge must make a determination based not only on the witness's assertion but also on all the other circumstances of the case whether the witness has reasonable cause to believe an answer to a question would support a conviction of the witness or would furnish a link in the chain of evidence needed to prove a crime by the witness.

Klein v. Smith, 559 F.2d 189 (2d Cir. 1977)

Ohio v. Reiner, 121 S. Ct. 1252 (2001)

Out of the presence of the jury the trial judge should examine the witness on the record regarding his or her claim of privilege. The witness is permitted to state in very general, circumstantial terms why he or she feels it may be incriminating to answer a given question. The judge may then examine the witness as long as is necessary to determine whether there are reasonable grounds to believe that being compelled to answer the question will subject the witness to a danger of incrimination.

United States v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976)

Some circuits have approved the further exploration of the witness's claim by the judge in an in camera hearing at which only the witness, his or her counsel, and a reporter are present.

In re Brogna, 589 F.2d 24 (1st Cir. 1978)
United States v. Fricke, 684 F.2d 1126 (5th Cir. 1982)

Once a prima facie claim of privilege is raised, it is the burden of the government to make it "perfectly clear" that the answers sought "cannot possibly" tend to incriminate, for, if the witness were required to prove the hazard, he or she would be compelled to surrender the very protection that the privilege is designed to guarantee.

United States v. Yurasovich, 580 F.2d 1212 (3d Cir. 1978)
Matter of Grand Jury Empanelled Feb. 14, 1978 (Markowitz), 603 F.2d 469 (3d Cir. 1979)

The judge must be sensitive to the fact that the witness frequently cannot prove that his or her claim is legitimate without surrendering it.

Ryan v. Commissioner, 568 F.2d 531 (7th Cir. 1977)

The guarantee against testimonial compulsion must be liberally construed. The court, rather than the witness, is to decide whether there is reasonable cause to apprehend danger from an answer, but the court is to require the witness to answer only if it clearly appears to the court that the witness is mistaken in his or her apprehension.

Hoffman v. United States, 341 U.S. 479 (1951)
In re Grand Jury Proceedings, 562 F.2d 334 (5th Cir. 1977)

Sustaining the privilege requires only that it be evident from the implication of the question, in the setting in which it is asked, that a responsive answer to the question or explanation of why it cannot be answered might be dangerous because an injurious disclosure could result.

Hoffman v. United States, 341 U.S. 479 (1951)
United States v. Melchor Moreno, 536 F.2d 1042 (5th Cir. 1976)
F.D.I.C v. Sovereign State Capital, Inc., 557 F.2d 683 (9th Cir. 1977)
United States v. Edgerton, 734 F.2d 913 (2d Cir. 1984)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 1j    Witnesses: Fifth Amendment Privilege Against Self-Incrimination: Blanket Assertions Of Privilege Are Usually Not Allowed

CAVEAT: See Publication Preface and Caveats.

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300.23 Privilege Against Self Incrimination (5th Amendment)

A witness may not assert a blanket claim of privilege. The claim must be asserted question by question.

National Life Ins. Co. v. Hartford Accident & Indem. Co., 615 F.2d 595 (3d Cir. 1980)
United States v. Allshouse, 622 F.2d 53 (3d Cir. 1980)
United States v. Goodwin, 625 F.2d 693 (5th Cir. 1980)
United States v. Rodriguez, 706 F.2d 31 (2d Cir. 1983)
United States v. Hatchett, 862 F.2d 1249 (6th Cir. 1988)
United States v. Bodwell, 66 F.3d 1000 (9th Cir. 1995)

The court should conduct a hearing out of the jury's presence to determine which questions the witness must answer and which need not be answered.

United States v. Goodwin, 625 F.2d 693 (5th Cir. 1980)
United States v. Zappola, 646 F.2d 48 (2d Cir. 1981)

The court may sustain a blanket assertion of the privilege if it concludes, after inquiry, that the witness could legitimately refuse to answer essentially all relevant questions.

United States v. Tsui, 646 F.2d 365 (9th Cir. 1981) (narrow exception)
But see United States v. Moore, 682 F.2d 853 (9th Cir. 1982)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

16.13 Conduct Of Attorneys

Chapter 254: Excuse: Duress/Coercion, Necessity, Choice Of Evils, Etc.

Neither the prosecution nor the defense should be permitted to call a witness who they know will claim the privilege.

United States v. Watson, 591 F.2d 1058 (5th Cir. 1979)
United States v. Crawford, 707 F.2d 447 (10th Cir. 1983)
United States v. Plescia, 48 F.3d 1452 (7th Cir. 1995)

A defendant may not call as a witness a codefendant who has indicated his or her intention to claim the privilege.

United States v. Roberts, 503 F.2d 598 (9th Cir. 1974)
United States v. Tuley, 546 F.2d 1264 (5th Cir. 1977)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

300.23 Privilege Against Self Incrimination (5th Amendment)

Immunized testimony in a grand jury proceeding from a witness who claims the privilege at trial may not be introduced in evidence under FRE 804(b)(1) without a showing of "similar motive."

United States v. Salerno, 505 U.S. 317 (1992)

A witness who has been immunized may not claim the privilege, since the immunity affords him or her the same protection as the Fifth Amendment.

In re Gilboe, 699 F.2d 71 (2d Cir. 1983)
In re Grand Jury Proceedings, 860 F.2d 11 (2d Cir. 1988)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

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300.23 Privilege Against Self Incrimination (5th Amendment)

A defendant who pleads guilty to one count of a multicount indictment may claim the privilege because he or she is still subject to prosecution on the other counts.

MacKay v. United States, 503 F.2d 591 (10th Cir. 1974)
United States v. Valencia, 656 F.2d 412 (9th Cir. 1981)

If there is only one crime for which the defendant is potentially liable, and the defendant pleads guilty to that crime, the plea is a waiver of the privilege, and he or she may be compelled to testify.

United States v. Yurasovich, 580 F.2d 1212 (3d Cir. 1978)
United States v. Pardo, 636 F.2d 535 (D.C. Cir. 1980)
But see United States v. Velasquez, 141 F.3d 1280 (8th Cir. 1998)

If the defendant pleads guilty to a federal charge but is still subject to prosecution by a state, he or she may claim the privilege.

United States v. Metz, 608 F.2d 147 (5th Cir. 1979)
United States v. Velasquez, 141 F.3d 1280 (8th Cir. 1998)

A voluntary guilty plea is a waiver of the privilege only with respect to the crime that was admitted to by the plea.

United States v. Moore, 682 F.2d 853 (9th Cir. 1982)
United States v. Fortin, 685 F.2d 1297 (11th Cir. 1982)
United States v. Rodriguez, 706 F.2d 31 (2d Cir. 1983)

Mitchell v. United States, 526 U.S. 314 (1999)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

18.3 Failure Of Defendant To Testify

The jury may draw no inference from the exercise of the privilege irrespective of whether the inference is favorable to the prosecution or to the defense.

United States v. Nunez, 668 F.2d 1116 (10th Cir. 1981)

If the witness makes a valid claim of privilege, counsel may not make any argument to the jury based on any inference that might be drawn from that claim.

United States v. Castillo, 615 F.2d 878 (9th Cir. 1980)
Solomon v. Kemp, 735 F.2d 395 (11th Cir. 1984)

If the defendant takes the witness stand, the prosecutor may comment on the defendant's failure to deny or explain incriminating facts already in evidence. The prosecutor may do so whether or not the defendant claims the privilege. The defendant may not selectively testify as to the merits yet avoid comment on his or her failure to explain other incriminating evidence.