\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0As attorneys, protecting the interests of clients should always be a paramount concern. Attorneys protect their clients' interests in many different ways. Sometimes it is important to inform a client of certain consequences of breaching a contract. Other times it is important to advise clients of possible risks their business may encounter if that client takes a certain action. On occasion an attorney must advise his or her clients as to when they may or may not assert their constitutional privilege against self-incrimination. This can be difficult at times because the Fifth Amendment privilege against self-incrimination is applied differently in various circumstances.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Everything would be much easier for us if it were as simple as advising our clients to testify "It wasn't me," as pop-star and songwriter Shaggy once eloquently advised us all to do at the turn of the century. In a perfect world, all clients would be innocent of all crimes, and attorneys would never have to worry about clients being prosecuted for their testimony. Sadly, life is just not that simple. Thankfully, the Framers of the Constitution did provide attorneys some assistance by creating the personal privilege against self-incrimination.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Fifth Amendment of the Constitution provides: "No person ... shall be compelled in any criminal case to be a witness against himself."1 South Carolina has echoed this sentiment in Article I, Section 12 of the S.C. Constitution. These state and federal constitutional provisions undoubtedly establish that an individual shall not be required to offer testimony in a criminal matter that would be self-incriminating, but does the privilege extend to matters that are not criminal in nature? Furthermore, can individuals be forced to offer testimony in a civil proceeding that may ultimately incriminate them and open them up to criminal prosecution? Many scholarly articles have been written and published on this topic; however, an attorney whose focus predominantly revolves around civil matters will rarely need to consider this issue. This article is being authored to provide a simple understanding of this topic for the average practitioner.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In South Carolina a witness may assert the privilege against self-incrimination "in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory"2 This protects an individual from being compelled to produce any evidence or information in a non-criminal matter if such information may ultimately be used against the individual in a criminal proceeding.3 The privilege applies not only to testimony that would support a criminal conviction but extends to any testimony that may furnish a "link in the chain of evidence" necessary to prosecute an individual for a crime.4 This begs the question: What exactly does the phrase a "link in the chain of evidence" mean? To put it simply, if the information being sought could lead to his or her personal incrimination, a person may invoke the privilege, even if the underlying information is not inculpatory in and of itself. For example, if a person was murdered and your client was at that person's home the night of his or her death, then your client may not be compelled to testify if your client's presence at the home is evidence that could ultimately lead to the conviction of your client. As an additional example, the S.C. Court of Appeals has held that a person under investigation for bank fraud properly asserted the privilege in a civil suit with respect to discovery requests that sought detailed information relating his bank accounts, which was information that was not incriminating in itself but could lead to incriminating evidence.5
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Who may invoke the privilege?
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The language of the Constitution is very broad stating that a "person" may refuse to answer questions that may incriminate him or herself. The privilege is not merely confined to a party of the action. For example, a third party may assert the privilege in a motion to quash a subpoena. Any witness may invoke the privilege when the witness has reasonable cause to apprehend danger from his or her answer.6 In order to invoke the privilege, a person must be "confronted by substantial and 'real' ... hazards of incrimination."7 The privilege against self-incrimination is purely personal in nature. This means the witness must assert the privilege, and a judge may not assert it on his or her behalf. A simple refusal to respond to an inquiry is all that is necessary to assert it.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Now I bet you may be wondering: Does the...