Chapter 4 The Process for Determining the Validity of the Assertion

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

CHAPTER 4 The Process for Determining the Validity of the Assertion

A claim that the Fifth Amendment protects the witness from responding to an inquiry is not generally sufficient—standing alone—to sustain the assertion. A court must make its own evaluation of the assertion. However, for a court to compel the witness to disclose the answer in support of a Fifth Amendment privilege claim, absent an order of immunity, would obviously defeat the privilege. Thus, to sustain the assertion or deny its validity, a court must determine whether the demand for testimony presents a sufficient danger of incrimination—without knowing what the answer will be.

The leading case providing guidance to courts for determining the validity of a Fifth Amendment assertion is Hoffman v. United States, 341 U.S. 479 (1951). In that case, the defendant was convicted of criminal contempt for refusing to obey a district court order requiring him to answer questions before a grand jury investigating frauds against the federal government. The Supreme Court reversed the defendant's conviction for contempt, holding that, under all of the circumstances, the defendant had a reasonable concern that answering the questions posed could incriminate him. In so ruling, the Court made clear that "[t]he witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself" and that it was for the district court to say if the witness had a valid basis to assert the Fifth Amendment. Id. at 486. However, the Court then went further and said:

To 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.

Id. at 486-87.

The Court indicated that a judge must accept the witness's Fifth Amendment assertion unless it is "perfectly clear . . . that the witness is mistaken, and that the answer(s) cannot possibly have such tendency to incriminate." Id. at 488-89 (citations and internal quotation marks omitted). Thus, Hoffman demands substantial deference by the courts to the witness's assertion of the Fifth Amendment privilege.

In a grand jury proceeding, a witness's assertion of the Fifth Amendment privilege is challenged infrequently, for the criminal nature of the inquiry will often make the validity of the person's assertion self-evident. Similarly, in a criminal trial, the danger of incrimination will often be obvious, requiring the person invoking the privilege to make little, if any, independent demonstration of its validity. On the other hand, in settings where the potential incrimination is not self-evident, courts generally require the party asserting the privilege to bear the burden of going forward, and/or the burden of proof, to justify their Fifth Amendment assertion.

• Estate of Fisher v. Comm'r, 905 F.2d 645, 649-50 (2d Cir. 1990) (noting that while the burden of establishing the existence of the danger of self-incrimination lies with the witness, the witness is not required to prove the hazard of self-incrimination by a preponderance of the evidence, but need only show "a reasonable possibility that his own testimony will incriminate him").
• In re Morganroth, 718 F.2d 161, 169 (6th Cir. 1983) ("Where there is nothing suggestive of incrimination about the setting in which a seemingly innocent question is asked, the burden of establishing a foundation for the assertion of the privilege [but not the burden of proof] should lie with the witness making it.") (citations omitted).
• Baker v. Limber, 647 F.2d 912, 917 (9th Cir. 1981) ("The trial court must make this determination from the facts as well as from his personal perception of the peculiarities of the case. If he decides that no threat of self-incrimination is evident, the defendant then bears the burden of showing the danger of incrimination.") (citations and internal quotation marks omitted).
• OSRecovery, Inc. v. One Groupe Int'l, Inc., 262 F. Supp. 2d 302, 307, n.23 (S.D.N.Y. 2003) (if the incriminatory nature of the questions is not readily apparent from the setting, the witness bears the burden to show a credible basis for invoking the Fifth Amendment).
• Jett v. State, 498 S.E.2d 274, 276 (Ga. Ct. App. 1998) ("The burden is on the individual claiming the privilege to state the general reason for his refusal to answer and to specifically establish that a real danger of incrimination existed with respect to each question.") (citations and internal quotation marks omitted).
• United States v. Dominguez, No. 96C00027, 1997 WL 148816, at *2 (O.C.A.H.O. 1997) (in compelling witness to answer certain deposition questions in an administrative proceeding, the judge remarked, "[T]he party invoking the Fifth Amendment privilege against self-incrimination bears the burden of proof the privilege exists.") (citation omitted).

We consider here the processes used by the courts in various settings to determine the validity of a Fifth Amendment assertion.

Procedures for Determining the Validity of Fifth Amendment Assertions in Grand Jury Proceedings

When the prosecutor challenges a grand jury witness's assertion of the Fifth Amendment privilege, it is generally sufficient for counsel for the witness to explain to a judge how the dangers of self-incrimination are real rather than imaginary.

• In re Grand Jury Subpoena to John Doe, 41 F. Supp. 2d 616, 620 (W.D. Va. 1999) (holding that witness must do more than merely state that the answers would incriminate and applying a two-step inquiry "whether the information is incriminating in nature" and, if so, "whether criminal prosecution is sufficiently a possibility" to determine the applicability of the Fifth Amendment privilege) (citation omitted).

To support the validity of the assertion, counsel must be allowed to present any facts that would tend to support the witness's claim, regardless of whether the material satisfies the rules of evidence.

• In re Atterbury, 316 F.2d 106, 111 (6th Cir. 1963) (error not to allow defense to call government attorney as witness in order to demonstrate validity of Fifth Amendment assertion).
• In re Portell, 245 F.2d 183, 187 (7th Cir. 1957) (error not to receive newspaper clippings showing witness to be a companion of person under investigation in order to demonstrate valid privilege assertion).

See also

• Fed. R. Evid. 104(a): "[T]he court must decide any preliminary question about whether . . . a privilege exists . . . . In so deciding, the court is not bound by evidence rules . . . ."
• Zicarelli v. N.J. State Comm'n of Investigation, 406 U.S. 472, 47879 (1972) (noting without criticism that "appellant introduced numerous newspaper and magazine articles bearing upon his self-incrimination claim.").

Because of the secrecy attendant to all federal grand jury proceedings (and most state grand jury proceedings), the determination of the validity of the assertion of the Fifth Amendment must also be held in a non-public proceeding and, most often, in camera. Indeed, courts seem unwilling to allow a person asserting the Fifth Amendment privilege before the grand jury to refuse to submit to an in camera review for the purpose of deciding whether the invocation, if challenged, is valid.

• United States v. Myers, 593 F.3d 338, 348 & n.15 (4th Cir. 2010) (refusing to consider an appeal of a district court order directing witness to produce missing items for in camera review, noting that witness would not waive her Fifth Amendment privilege by turning over items for in camera review by the court).
• United States v. Drollinger, 80 F.3d 389, 393 (9th Cir. 1996) (remanding to permit district court to conduct an in camera hearing regarding validity of taxpayer's refusal to answer IRS questions on the basis of the Fifth Amendment privilege).
• In re Three Grand Jury Subpoenas, 847 F.2d 1024, 1028-29 (2d Cir. 1988) (requiring grand jury witness to produce a tape cassette recording to the court for in camera inspection and upholding contempt order where witness refused, reasoning that producing item for in camera review was not incriminating).

If the court finds a grand jury witness's invocation of the Fifth Amendment privilege to be invalid and orders the witness to testify (or to produce documents), at least one former...