§ 43.06 Other Witnesses Privilege at Trial

• Jurisdiction: United States

§ 43.06 Other Witnesses Privilege at Trial

In contrast to the accused, other witnesses may be subpoenaed and compelled to testify at trial. These witnesses, however, retain the privilege with respect to specific questions—in both criminal and civil trials.⁵⁴

[A] Invoking the Privilege

A witness may refuse to answer any question that would subject that witness to criminal liability.⁵⁵ The test is whether there is an appreciable risk that the answer could subject the witness to criminal prosecution, state or federal.⁵⁶ The privilege "embraces those [answers] which would furnish a link in the chain of evidence needed to prosecute the claimant for a . . . crime."⁵⁷ The privilege, however, must be asserted to each specific question;⁵⁸ the trial court must separate incriminating questions from those that are not incriminating and require the witness to answer the latter.⁵⁹ Moreover, when the witness "asserts the privilege, questioning need not cease, except as to the particular subject to which the privilege has been addressed."⁶⁰ An adverse inference may be drawn against a non-testifying party in a civil proceeding.⁶¹

[B] Calling a Witness Who Claims the Privilege

Many courts hold that a party should not call a witness for the sole purpose of having the witness claim the privilege in front of the jury.⁶² Some courts make this rule mandatory.⁶³ "Where the government has sufficient reason to believe that a witness may invoke his or her Fifth Amendment rights in response to questioning, the better practice requires that the prosecutor so inform the court, thus allowing for a voir dire to be conducted out of the presence of the jury to determine 'reliably that the witness will claim the privilege and the extent and validity of the claim.' This is so for the simple reason that the refusal of a witness to answer a specific question, particularly in the context of cross-examination, could lead a jury to draw impermissible inferences from which neither side has a right to benefit."⁶⁴

In some instances, the defense wants to call a third party that it claims is the person who committed the charged offense. The Maryl and Court of Appeals addressed the issue in Gray v. State,⁶⁵ writing:

When a defendant proffers a defense that the crime was committed by another person and the defendant wants to call as a witness that person only to invoke his Fifth Amendment privilege against self-incrimination on the witness stand in the presence of the jury, the trial court, on the record, should make a determination of whether sufficient other evidence has been proffered that, if believed by any trier of fact, might link the accused witness to the commission of the crime. If the trial court finds that such sufficient evidence, linking the accused witness to the crime and believable by any trier of fact, exists that could possibly cause any trier of fact to infer that the witness might have committed the crime for which the defendant is being tried, then the trial court has the discretion to permit, and limit as normally may be appropriate, the defendant to question the witness, generally, about his involvement in the offense and have him invoke his Fifth Amendment right in the jury's presence.⁶⁶

In contrast, the West Virginia Supreme Court has ruled that "in a criminal trial, when a non-party witness intends to invoke the constitutional privilege against self-incrimination, the trial court shall require the witness to invoke the...