Chapter 2 Elements of the Fifth Amendment

• Library: The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination (ABA) (2014 Ed.)

CHAPTER 2 Elements of the Fifth Amendment

Only compelled self-incriminating testimony is protected by the Fifth Amendment. As expressed by the Supreme Court, "[T]o qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled." Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 189 (2004).

The Meaning of Self-incrimination

Information is self-incriminating if it may subject the speaker, or lead to other information that may subject the speaker, to the possibility of criminal prosecution or criminal penalties.

• Kastigar v. United States, 406 U.S. 441, 445 (1972) (the Fifth Amendment privilege "protects against any disclosures that the witness reasonably believes may be used in a criminal prosecution or could lead to other evidence that might be so used").
• Hoffman v. United States, 341 U.S. 479, 486 (1951) ("The privilege afforded not only extends to answers that would in themselves support a criminal conviction under a federal criminal statute, but likewise embraces those which would furnish a link in a chain of evidence needed to prosecute the claimant for a federal crime.").

To guard against frivolous assertions of the privilege, the Supreme Court has repeatedly stated: "[T]he central standard for the privilege's application has been whether the claimant is confronted by substantial and real, and not merely trifling or imaginary hazards of incrimination." Marchetti v. United States, 390 U.S. 39, 53 (1968). See also United States v. Apfelbaum, 445 U.S. 115, 128 (1980) (quoting Marchetti with approval); Zicarelli v. N. J. State Comm'n of Investigation, 406 U.S. 472, 478 (1972) ("It is well established that the privilege [against self-incrimination] protects against real dangers, not remote and speculative possibilities."); Brown v. Walker, 161 U.S. 591, 599-600 (1896) (quoting the English case of Regina v. Boyes, 1 Best & S. 311, 32, that distinguished between "danger [that was] . . . real and appreciable, with reference to the ordinary operation of the law in the ordinary course of things" and "danger of an imaginary and insubstantial character, having reference to some extraordinary and barely possible contingency. . . .").

Although the threat of incrimination must be real, the protection afforded by the Fifth Amendment extends to the possibility of criminal prosecution, not the probability.

• Pillsbury Co. v. Conboy, 459 U.S. 248, 267 n.1 (1983) (Marshall, J., concurring) ("It need not be probable that a criminal prosecution will be brought or that the witness's answer will be introduced in a later prosecution; the witness need only show a realistic possibility that his answer will be used against him.").
• Resnover v. Pearson, 965 F.2d 1453, 1462 (7th Cir. 1992) ("We cannot agree that a witness' constitutional privilege against self-incrimination depends upon a judge's prediction of the likelihood of prosecution.").
• United States v. Sharp, 920 F.2d 1167, 1171 (4th Cir. 1990) (trial court erred in compelling a witness to testify, despite the witness's assertion of the Fifth Amendment privilege, based solely on the government's representation that it had no present intention of pursuing criminal prosecution).
• In re Folding Carton Antitrust Litig., 609 F.2d 867, 871 (7th Cir. 1979) ("When a witness can demonstrate any possibility of prosecution which is more than fanciful he has demonstrated reasonable fear of prosecution sufficient to meet constitutional muster.").
• In re Brogna, 589 F.2d 24, 27-28 (1st Cir. 1978) (prosecutor's denial of intention to prosecute held insufficient to overrule claim of Fifth Amendment privilege against self-incrimination).
• United States v. Miranti, 253 F.2d 135, 139 (2d Cir. 1958) ("We find no justification for limiting the historic protections of the Fifth Amendment by creating an exception . . . which would nullify the privilege whenever it appears that the government would not undertake to prosecute.").
• Carter v. United States, 684 A.2d 331, 336-37 (D.C. 1996) (citing cases from the Second, Fourth, Fifth, Seventh, and Tenth Circuits that follow the rule that the inquiry into whether a statement is incriminating should not consider the likelihood of prosecution).

A disclosure that could implicate the witness in activity addressed by a criminal statute is usually sufficient to justify invocation of the Fifth Amendment privilege against self-incrimination.

• Counselman v. Hitchcock, 142 U.S. 547, 576-77 (1892) (describing why two witnesses compelled to give testimony disclosing sources of information, or means by which government could obtain additional evidence that a crime had been committed, would have the effect of connecting the witness to a crime, and thereby constitute self-incriminating disclosures).
• Blau v. United States, 340 U.S. 159, 161 (1950) (because the Smith Act forbade knowingly belonging to any organization that advocated overthrow of the government, a grand jury witness could refuse to answer questions regarding whether he was employed by the Communist Party).
• Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77 (1965) ("[M]ere association with the Communist Party presents sufficient threat of prosecution to support a claim of privilege.") (citations omitted).
• But cf. Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 190-91 (2004) (although state statute criminalized the refusal to identify oneself when stopped by the police, Court found that disclosure of one's name was incriminating only in unusual circumstances and that state statute requiring a person lawfully detained to identify himself did not violate the Fifth Amendment).

Importantly, the privilege extends not only to answers that would themselves constitute admissible evidence in a criminal prosecution but also to any answer that would furnish a "link in a chain" of evidence that could be used to prosecute the person claiming the privilege. In the leading case of Hoffman v. United States, 341 U.S. 479 (1951), a witness was subpoenaed to appear before a federal grand jury and asked to state his occupation and whether he knew a certain individual, to which he asserted the Fifth Amendment. The district court overruled his assertion and held him in contempt for refusing to answer on the grounds that the questions posed no risk of a "real and substantial danger of self-incrimination." The Supreme Court reversed, issuing the often cited standard: "[t]he privilege afforded not only extends to answers that would in themselves support a conviction under a federal statute, but likewise embraces those which furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. . . ." Id. at 486. The Court found on the basis of the witness's 21-year police record, presence on a Senate committee's list of known gangsters, being labeled as a gangster by local police, and having served a sentence for narcotics offenses, that it was far from "perfectly clear" that the answers to the questions could not possibly incriminate. Id. at 488.

Because the definition of incrimination includes a "link in a chain of evidence needed to prosecute," even a person who claims innocence may simultaneously assert his or her Fifth Amendment privilege against self-incrimination.

• Ohio v. Reiner, 532 U.S. 17, 21-22 (2001) (per curiam) (when the defense theory was that a prosecution witness was responsible for an infant's death, the witness could invoke Fifth Amendment privilege against self-incrimination, despite claims of innocence, because there was reasonable cause to believe that her responses regarding her care of the infant could form a "link in a chain" that could be self-incriminating).
• In re Proceedings Before a Grand Jury, 768 N.E.2d 1102, 1107, 55 Mass. App. Ct. 17, 23 (2002) (reversing a judgment of contempt against a witness who, despite claiming innocence, asserted the Fifth Amendment privilege before a grand jury investigating an arson, where she was one of two individuals who, because of timing and opportunity, was in a position to have perpetrated the crime).

Given the scope and number of federal, state, and local criminal statutes in the United States, including conspiracy statutes, it is relatively easy for the party asserting a Fifth Amendment right to demonstrate that a question put to him or her could yield an answer that could furnish a link in a chain of incriminating evidence. While courts often place the burden of demonstrating the likelihood of incrimination on the party asserting the Fifth Amendment privilege, the better view is that the party opposing the assertion should have the burden of persuasion to demonstrate with clarity that there is no possibility of incrimination. See, e.g., Kerr v. Hart (In re Christou), Nos. 06-68251-MHM, 06-68376-MHM, 2010 WL 4008167, at *5 (Bankr. N.D. Ga. Sept. 24, 2010) ("The 'ultimate burden of persuasion with respect to the validity' of a Fifth Amendment claim rests with the opposing party.") (citations omitted); State v. Manley, 664 N.W.2d 275, 286 (Minn. 2003) ("[T]he trial court should not require the witness to prove the hazard of incrimination, as to do so would require the witness to 'surrender the very protection which the privilege is designed to guarantee.'") (citations omitted); Commonwealth v. Martin, 668 N.E.2d 825, 832, 423 Mass. 496, 505 (1996) ("In attempting to establish his right to the privilege, a witness should not be required to disclose so much that the privilege is effectively destroyed.") (citations omitted). As the Supreme Court stated in Hoffman v. United States, 341 U.S. 479, 486-87 (1951), "[t]o sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Accordingly, it is rare for courts to overrule assertions of...