Chapter 8 Waiver and Risk of Waiver
| Library | The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination (ABA) (2014 Ed.) |
There is no area of the law regarding the Fifth Amendment privilege against self-incrimination as confusing as the law regarding waiver. Much of the confusion stems from the use of the vague term "waiver" to describe two different situations: first, the situation in which the witness forfeits his right to complain about the admissibility into evidence of self-incriminating statements by voluntarily making them, and second, the situation in which a court decides that the witness must, by having provided some self-incriminating testimony, continue to make further self-incriminating disclosures.
Even if we were to limit our consideration of waiver to the second circumstance, it would be difficult to discern clear patterns in court rulings, thereby often leaving witnesses at their peril in determining how to proceed. As with the Fifth Amendment generally, it is best to evaluate waiver in the varying contexts the issue has arisen, as only a few general principles can be reliably described.
When a witness "forfeits" his privilege against self-incrimination in one proceeding by voluntarily testifying to self-incriminating facts, the witness may reassert the privilege against self-incrimination in subsequent separate proceedings.
In re Neff, 206 F.2d 149 (3d Cir. 1953), a leading case, explained this proposition as follows:
The privilege attaches to the witness in each particular case in which he may be called on to testify, and whether or not he may claim it is to be determined without reference to what he said when testifying as a witness on some other trial, or on a former trial of the same case, and without reference to his declarations at some other time or place.
Id. at 152 (citations omitted). Neff is a correct statement of the law.
• United States v. Allmon, 594 F.3d 981, 985 (8th Cir. 2010) ("there is ample precedent for the rule that waiver of the Fifth Amendment privilege in one proceeding does not waive that privilege in a subsequent proceeding . . . .") (citing cases).
• United States v. Fortin, 685 F.2d 1297, 1298-99 (11th Cir. 1982) (quoting Neff approvingly).
• United States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976) ("It is hornbook law that the waiver is limited to the particular proceeding in which the witness appears.") (citation omitted).
• In re Vitamins Antitrust Litig., 120 F. Supp. 2d 58, 66 (D.D.C. 2000) ("[M]ost courts that have considered this issue have held that the waiver of the privilege against self-incrimination in one proceeding does not affect the right of a witness or accused to invoke the privilege as to the same subject matter in another independent proceeding, but is limited to the proceeding in which it occurs.") (citations omitted).
• Commonwealth v. Fiore, 762 N.E.2d 905, 910, 53 Mass. App. Ct. 785, 789-90 (2002) (deciding that a witness called by the defendant in a criminal trial did not waive his Fifth Amendment privilege by testifying at a prior civil deposition on the same subject, on the basis that the civil action and the criminal trial were clearly separate proceedings).
• Martin v. Flanagan, 789 A.2d 979, 985-86, 259 Conn. 487, 497-98 (2002) (collecting cases from six federal circuits and 17 states holding that a person who testifies in a trial is "not estopped from asserting the [Fifth Amendment] privilege in a subsequent proceeding.") (citations omitted).
• State v. Roberts, 622 A.2d 1225, 1235, 136 N.H. 731, 745 (1993) ("[I]t is hornbook law that the waiver [of the privilege] is limited to the particular proceeding in which the witness appears.") (citation and internal quotation marks omitted).
• In re Knapp, 536 So. 2d 1330, 1336 (Miss. 1988) ("[W]aiver of the privilege [against self-incrimination] in one proceeding is limited to a waiver for that proceeding and that proceeding only.").
• Hummell v. Superior Court, 211 A.2d 272, 274, 100 R.I. 54, 57 (1965) ("Substantial authority supports the proposition that one who testifies before a grand jury does not thereby waive the privilege of refusing to testify in some subsequent proceeding on the ground of self-incrimination.").
• See also Pillsbury Co. v. Conboy, 459 U.S. 248, 263-64 (1983) (witness who previously testified under grant of immunity before grand jury had right to refuse to answer questions during a civil deposition on same subject).
The rationale for the "separate proceedings" rule is a sensible one: that conditions may change over time, creating new grounds for apprehension by the witness that compelled disclosures would be self-incriminating, or that repetition of testimony in an independent proceeding could constitute an independent source of self-incriminating evidence against the witness. Indeed, the separate proceedings rule does not implicate the danger that courts are generally concerned about when discussing partial waiver—that is, that the fact-finding process will be distorted or that opposing parties will be unfairly prejudiced.
• In re Corrugated Container Antitrust Litig., 661 F.2d 1145, 1155 (7th Cir. 1981) ("[R]epetition of testimony in an independent proceeding may itself be viewed as incriminating. Thus, [non-party deponent's] deposition, even if it merely repeated or acknowledged his earlier testimony, could constitute an independent source of evidence against him."), aff'd, Pillsbury Co. v. Conboy, 459 U.S. 248 (1983).
• United States v. Miranti, 253 F.2d 135, 140 (2d Cir. 1958) (ruling that passage of time and events occurring between two appearances before the grand jury rendered the grand jury proceedings separate for purposes of the waiver rule and allowing the witness to assert the Fifth Amendment before the grand jury, after previously testifying before the same grand jury).
The distinction between various proceedings is not always crystal clear. The dominant view is that a grand jury proceeding is a separate proceeding from the subsequent criminal trial. A person who voluntarily testifies before a grand jury may assert his Fifth Amendment privilege and remain silent at pretrial hearings or a trial held on an indictment returned by the grand jury or vice versa.
• United States v. James, 609 F.2d 36, 44 (2d Cir. 1979) (although defendant failed to invoke privilege before the grand jury, he was entitled to invoke it at trial).
• United States v. Licavoli, 604 F.2d 613, 623 (9th Cir. 1979) (affirming trial court decision that witness who testified at the grand jury properly invoked his Fifth Amendment rights at trial).
• United States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976) (affirming trial court ruling that co-defendant, who had previously testified in a deposition in other proceedings, could not be called to testify in defendant's trial).
• Commonwealth v. Martin, 668 N.E.2d 825, 829, 423 Mass. 496, 500-01 (1996) (holding that the witness had not waived his ability to invoke the privilege against self-incrimination at a subsequent trial by testifying before the grand jury).
• See also United States v. Williams, 504 U.S. 36, 46 (1992) (noting prior decisions in which the Court treated grand jury proceedings "as other than a constituent element of a 'criminal prosecution'.") (citation omitted).
The rule in the District of Columbia, however, is to the contrary.
• Ellis v. United States, 416 F.2d 791, 800 (D.C. Cir. 1969) (witness was required to testify at trial to same matters as to which he testified voluntarily before the grand jury that returned the indictment on which the defendant was being tried).
• United States v. Miller, 904 F.2d 65, 67 (D.C. Cir. 1990) (although recognizing decisions that call into question the continuing validity of its prior decision in Ellis, the court remarked that it was still good law).
See also
• United States v. Basciano, 430 F. Supp. 2d 87, 94-95 (E.D.N.Y. 2006) (having testified in grand jury, witness was deemed unable to assert Fifth Amendment privilege against self-incrimination at subsequent trial and therefore was not unavailable for purpose of allowing defendant to use grand jury testimony in lieu of calling witness to the stand).
• Harris v. United States, 614 A.2d 1277, 1282 (D.C. 1992) (acknowledging that in the District of Columbia, a defense witness who testified voluntarily at a pretrial suppression hearing may not invoke the privilege against self-incrimination to avoid testifying on the same issues at the ensuing trial in which he was called as a witness).
An initial criminal trial and a retrial are separate proceedings.
• Kirane v. City of Lowell, 622 F. Supp. 262, 265 (D. Mass. 1985) ("[A] person who waives his privilege of silence in one trial [is not] estopped from asserting the privilege as to the same matter in a subsequent trial or proceeding.") (citations omitted).
• State v. Knowles, 395 So. 2d 678, 680 (La. 1981) ("One can waive silence at one trial and assert the right as to the same matter in a subsequent [separate] trial.") (citation omitted).
Of course, the testimony given by the defendant at the first trial may be admissible in the second trial without violating the defendant's Fifth Amendment right to remain silent. See, e.g., Commonwealth v. Beauchamp, 732 N.E.2d 311, 325-26, 49 Mass. App. Ct. 591, 606-07 (2000).
Separate trials of co-defendants are also separate for purposes of the Fifth Amendment, allowing a defendant to testify in his own trial and still exercise his privilege against self-incrimination when called as a witness in the trial of his alleged accomplice.
• Ottomano v. United States, 468 F.2d 269, 273-74 (1st Cir. 1972) (revoking contempt that was issued after a convicted defendant refused to testify at a co-defendant's trial, because convicted defendant's motion to vacate was still pending, and thus he was still in possession of his Fifth Amendment privilege as to the crime of conviction).
As previously discussed, sentencing is a separate proceeding from a criminal trial, and the Supreme Court has...
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