6.6 Waiver

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

6.6 WAIVER

Failure to assert the privilege against self-incrimination in a timely fashion results in waiver of the privilege. ⁸⁹

A witness who answers a question without having asserted the privilege and who admits a self-incriminating fact may be required to disclose all information relevant to that fact except when there is a real danger of

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"further self-incrimination." ⁹⁰ Although it is difficult to define "further self-incrimination," it may loosely connote a different subject or topic than that previously testified to. Consequently, a witness who responds to an admittedly trivial, but incriminatory, question may well have waived the privilege quite broadly.

Because cross-examination may address areas far different from those dealt with by direct (often a consequence of an attempt at impeachment), a witness may claim the privilege on cross-examination.

A particular problem arises when the defendant takes the stand. ⁹¹ It is often said that the...