Self-incrimination

• Pages: 123-138

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CHAPTER 7

SELF-INCRIMINATION

The Fifth Amendment provides, in part, that “no person . . . shall be

compelled in any criminal case to be a witness against himself.” 1 Issues

related to the Fifth Amendment’s self-incrimination clause arise in two

main contexts in grand jury investigations.

First, a witness subpoenaed by the grand jury has a constitutional

right not to testify if the testimony would tend to incriminate the witness.

Claiming this privilege, however, does not ensure that a witness will not

have to testify. The government can compel a witness to testify by

granting the witness statutory immunity pursuant to 18 U.S.C. § 6001, et

seq. Alternatively, the U.S. Department of Justice’s Antitrust Division

(Division) can extend informal or “letter” immunity. Although a grant of

immunity does not bar prosecution of the witness for the offense to

which the testimony relates, it prohibits the government from using the

compelled testimony against the witness, as well as any evidence derived

from the compelled testimony.

Second, in limited circumstances, the act of producing documents in

response to a grand jury subpoena may have testimonial aspects. In

those situations, the subpoena recipient may not be compelled to produce

documents absent a grant of immunity for the act of production.

This Chapter explores substantive and procedural issues arising in

antitrust grand jury investigations concerning the privilege against self-

incrimination.

A. Availability of the Privilege Generally

A witness subpoenaed to appear before a grand jury may assert the

Fifth Amendment privilege and refuse to testify if the witness reasonably

believes that the government could use that testimony against him or her

in a criminal prosecution or that the testimony could lead to other

evidence that the government might so use.2 A witness may invoke the

1. U.S. CONST. amend. V.

2. Kastigar v. United States, 406 U.S. 441, 445 (1972).

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privilege regardless of whether or not they are the investigation’s target. 3

While there is no “ritualistic formula necessary in order to invoke the

privilege”4 a witness must expressly assert the privilege. 5 The

government can challenge the assertion of the privilege by moving a

court to compel answers, which will then decide whether any hazard of

self-incrimination is posed.6

The standard for rejecting claims of privilege, however, is high. To

assert 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.”7 The witness may

decline to answer any question that, if answered, “would furnish a link in

the chain of evidence needed to prosecute the claimant.” 8 Moreover, the

Supreme Court has held that the privilege against self-incrimination is

available to those who claim innocence, because an innocent witness’s

truthful responses may provide the government with incriminating

evidence from the speaker’s own mouth. Indeed, the Court has

emphasized that “one of the Fifth Amendment’s basic functions . . . is to

protect innocent men . . . who might otherwise be ensnared by

ambiguous circumstances.”9

If the possibility of self-incrimination is not apparent, the courts may

require the witness to make some affirmative disclosure indicating where

the danger lies.10 The Supreme Court has stated that a witness’s claim

will be upheld unless it is “perfectly clear” that answers “cannot

possibly” incriminate the witness.11 Other courts have elaborated by

ruling that the possibility of prosecution must be more than “fanciful,”12

3. United States v. Washington, 431 U.S. 181, 189 (1977).

4. Quinn v. United States, 349 U.S. 155, 164 (1943).

5. Salinas v. Texas, 570 U.S. 178, 185 (2013).

6. See Hoffman v. United States, 341 U.S. 479, 486 (1951).

7. Id. at 486-87.

8. Id. at 486; see also Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964).

9. Ohio v. Reiner, 532 U.S. 17, 21 (2001) (internal citations and quotation

marks omitted).

10. See McCoy v. Comm’r, 696 F.2d 1234, 1236 (9th Cir. 1983).

11. Malloy v. Hogan, 378 U.S. 1, 12 (1964) (quoting Hoffman , 341 U.S. at

486).

12. See, e.g., In re Grand Jury Proceedings (Samuelson), 763F.2d 321, 323-

24 (8th Cir. 1985) (finding no protection against removing speculative

possibilities); In re Folding Carton Antitrust Litig., 609 F.2d 867, 871

(7th Cir. 1979) (reciting “fanciful” language).