The Fifth Amendment protects against self-incrimination by stating that no one “shall be required in any criminal case to be a witness against himself.” The Self-incrimination Clause covers all residents and non-citizens, as well as the federal and state governments. The Fourteenth Amendment makes it applicable to the states regarding the right to refuse to testify. The clause’s text raises at least three questions. First, since the Clause mentions “witness against himself,” the question of what constitutes self-incrimination arises. Second, because the Clause mentions being “compelled,” the question of what constitutes compulsion arises. Finally, since the text refers to a “judicial case,” the question of what proceedings count as part of the case for purposes of invoking the Fifth Amendment protection arises.
What Does the Fifth Amendment Cover?
In short, these issues apply to a grand jury witness in the following ways: first, the witness’ testimony is incriminating if it provides a link in a chain of evidence needed to prosecute the witness for a crime; second, the witness’ testimony is compelled if the witness appears pursuant to a subpoena; and third, a grand jury proceeding qualifies as a proceeding for invoking the privilege of silence.
What Constitutes Incriminating Evidence and Your Right to Refuse to Testify?
To begin with, testimony is incriminating as it provides a link in the chain of evidence used to convict the witness for a crime or to increase the severity of a criminal punishment. The connection must be to a criminal penalty; penalties at work, as well as civil penalties such as deportation, do not count.
A domestic prosecution must also be linked; a foreign prosecution does not count. As a consequence, a witness can not claim the Fifth Amendment right against self-incrimination if he or she suspects that the evidence will be used against him or her in a potential criminal prosecution by a foreign government.
The right could not be invoked by the witness even if a foreign government with which the US has an agreement requiring the US to provide the witness’ testimony; the witness has a legitimate fear of deportation from the United States; and the government admits that the witness’ fear of being prosecuted in a foreign country is true and serious.
The case of Hoffman v. United States is the most well-known example of what constitutes a necessary relation. In Hoffman, a witness before a federal grand jury used the Fifth Amendment right by refusing to answer questions about his occupation and interactions with a wanted witness, and was found in contempt for his refusal. The United States Supreme Court, in overturning the contempt conviction, held that a witness may invoke the privilege if he or she has fair grounds to assume that the answers will provide a link in the chain of evidence required to prosecute the witness for a crime. The Court said that the district court should have recognized that, since the grand jury was looking into racketeering, answers about occupation would include answers about violations of gambling laws. The district court should have known that answers about the fugitive could link the witness to actions related to hiding the witness, according to the Court. For grand jury witnesses seeking to qualify their evidence as self-incriminating, Hoffman sets a low bar.
What is Testimony Compulsion?
Grand jury testimony is considered coerced if the witness is served with a subpoena, or if the witness is threatened with the loss of anything so valuable that the threat is considered coercion. Not all forms of pressure or punishment are compulsion. For example, termination of employment, loss of a professional license, ineligibility to obtain government contracts, and loss of the right to engage in political associations and hold public office are all considered compulsion by the United States Supreme Court.
However, a threat to move the person to a maximum security facility, on the other hand, would not count as compulsion.
The fines that the Court determined to be coercive should not be applied to grand jury witnesses. As a result, the United States Supreme ruled that a New York law violating the Fifth Amendment by requiring people who refuse to forfeit their immunity before a grand jury investigating public contracts to be ineligible for government contracts for five years.
When Can a Witness Invoke Privilege and Refuse to Testify in a Court Case?
The Fifth Amendment forbids a person from being forced to testify against himself “in any criminal case.” The courts have interpreted “any criminal case” to include not only existing and pending cases, but also potential criminal cases. As a result, a witness can invoke the privilege not only in a current criminal case against him or her, but also in any proceeding in which the answers may incriminate the witness in a future criminal case.
The grand jury, as well as non-criminal proceedings such as civil forfeiture and deportation, and informal proceedings such as an interview with a probation officer, are examples of where a witness can invoke the privilege. The witness’ fear of potential indictment must be serious and actual, not speculative or imagined, in order to invoke the privilege.
The Court Decides If Privilege Is Involved
A court must decide if the Fifth Amendment right extends after a witness invokes it. The fact that the witness “says so” does not prove that a statement will be incriminating. It is up to the court to determine if the witness’ silence is justified, and to order the witness to respond if the court believes the witness is mistaken. The United States Supreme Court held in Hoffman v. the United States that a trial court can uphold the right if it is clear from the implications of the issue that a responsive response to the question or clarification of why it cannot be answered will be risky due to the risk of injurious exposure. Otherwise, the witness asserting the right must back up his or her argument. If the witness is asked to support the claim of privilege, counsel should step in to provide the reasons instead of the client. If the witness provides the reasons without the assistance of counsel, the witness’ responses can be harmful.
Convicted Witness’s Privilege Statement
The Fifth Amendment right against self-incrimination can also be used by a convicted witness. If the testimony would expose the accused witness to further criminal charges or may further incriminate the witness at sentencing, the witness could invoke the privilege.
The Sixth Circuit has ruled that a witness who had already pleaded guilty to one count of an indictment did not lose his Fifth Amendment right to withhold incriminating evidence because he was facing charges in another state. A guilty plea only waives the right in relation to the crime confessed to; it does not constitute a blanket waiver of the privilege in relation to any offenses that might be the subject of future charges.
To what degree can a witness who has been convicted of such crimes but has not yet been sentenced (or whose direct appeal is still pending) effectively claim the Fifth Amendment right against self-incrimination when called to testify before a grand jury investigating the conviction? The convicted witness, like any other witness summoned to testify before the grand jury, must comply with the subpoena to the point of making an appearance before the grand jury. On the grounds of Fifth Amendment immunity, the witness cannot seek to quash the subpoena. When a witness appears and is interrogated, he or she has the right to claim the privilege in response to specific questions. Whether or not a claim of privilege is true in a particular case can be determined by the clear questions posed to the witness.
Determining Your Right to Refuse to Testify
In the case of the convicted witness, the right to inquire about the evidence that led to the conviction would be determined by one of two factors: (1) the status of the conviction, or (2) the likelihood of future punishment based on those facts. A witness can legitimately invoke the Fifth Amendment right in response to questions about a crime for which he or she has been convicted (either by trial or by a plea of guilty), as long as the conviction is not final.
As an example, as long as the witness is not convicted, the courts have recognized that a witness found guilty of a crime will legitimately claim the right in relation to questions about the crime.
The same is valid if the witness is prosecuting an appeal of a conviction when he or she is called before a grand jury. One court has also upheld the use of the right while the accused witness was facing a motion to overturn his conviction at the time of questioning.
Where a conviction is based on a guilty plea, however, some courts have ruled that the accused witness does not reasonably claim the right as to the offense for which the plea was entered because the penalty has not yet been enforced.
The fact that both the indictment and the sentence are final by the moment the witness is questioned about the evidence that led to the conviction does not preclude the witness from asserting Fifth Amendment privilege over those facts. While a conviction establishes a clear assumption that answers to concerns about the evidence surrounding the conviction would not further incriminate the witness, the mentioned cases do consider the privilege’s continued viability where it is shown that there is a risk of further federal, state, or international prosecution arising from the same facts.
Should a witness want to invoke the right under these cases, the witness must be able to justify precisely which offences may indeed be brought against him or her. As a result, prior to the grand jury appearance, our federal defense lawyers carefully consider all potential federal, state, or international charges based on the same evidence as the existing conviction and inform the witness of these possibilities.
For example, the witness can inform the lawyer that testifying truthfully before the grand jury will be inconsistent with prior trial testimony; the lawyer will then advise the witness that the threat of a perjury prosecution stemming from the earlier testimony may now be used to invoke the Fifth Amendment privilege when questioned before the grand jury.
We Help Protect Your Rights
Any of the prosecutor’s questions before the grand jury which seek information that goes beyond the reach of the prior conviction’s evidence. The witness who has been accused of a crime is in the same place as any other witness before the grand jury in such cases. To put it another way, the witness will use the Fifth Amendment right to refuse to testify or answer any questions that may lead to new criminal charges.
Federal Criminal Lawyers with Norman Spencer will talk to you about your criminal matter or investigations at any time – no matter where you are. Call us today for a consultation.
Leave a Reply