More on Fifth Amendment Rights from the News: On the Scope of the Privilege Against Self-Incrimination

June 18, 2013
By Hanging Out with Carl Gunn


  • Even an innocent person can claim the privilege against self-incrimination.
  • The test is whether the answer to the question could provide a mere “link in the chain of evidence” needed to convict.
  • All the person claiming the privilege needs to show is that there are “substantial and real, and not merely trifling or imaginary, hazards” of such incrimination.


My last two posts on the government’s efforts to extend the Miranda “public safety” exception in its questioning of the Boston Marathon bombing suspect arose, as I noted, out of public news reports. I guess the Fifth Amendment’s been in the news a lot lately – or maybe I’m just been thinking about it more when I read the newspaper – because some more news I read recently triggered some thoughts about another Fifth Amendment issue. You may recall the publicity about the IRS targeting tea party groups and the subsequent claims of some members of Congress that one or more IRS officials had misled them in testimony that had been given at a hearing about the targeting. Some members of Congress even suggested that giving this misleading testimony might have been a crime.

Soon after that, I saw an article indicating that one of the IRS officials had been resubpoenaed by a committee to testify about this alleged deception, invoked the Fifth Amendment, and refused to answer questions. This official was quoted as saying at the same time, however, that “I have not done anything wrong.”

This could trigger the question of how a person can assert the privilege against “self-incrimination” (my emphasis) if she hasn’t committed any crime. Because if you haven’t committed a crime, how could you incriminate yourself?

If you’re saying, “No that’s not the way it works,” as I hope you are, then you’ve got it right. But it was actually not crystal clear, at least to the Ohio Supreme Court, as recently as 15 years ago. The United States Supreme Court, in 2001, had to make clear – though they thought it was so obvious that they did it in a per curiam opinion – that the Ohio Supreme Court was wrong when it held that “a witness who denies all culpability does not have a valid Fifth Amendment privilege against self-incrimination.” Ohio v. Reiner, 532 U.S. 17, 18 (2001) (per curiam). Instead, the Court noted, its precedents “dictate that the privilege protects the innocent as well as the guilty.” Id.

This makes sense because of another principle about the privilege against self-incrimination, which the Court noted inReiner but had been established long before that. That principle is that a person can assert the privilege against self-incrimination in response to questions that fall well short of the ultimate question of guilt. The privilege can be asserted as to any question the answer to which could furnish a mere “link in the chain of evidence” needed to convict. Reiner, 532 U.S. at 19 (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)).See also United States v. Equihua-Juarez, 851 F.2d 1222, 1227 (9th Cir. 1988). All the person claiming the privilege has to show is that there are “substantial and real, and not merely trifling or imaginary, hazards of self-incrimination.” United States v. Vavages, 151 F.3d 1185, 1192 (9th Cir. 1998) (quoting United States v. Rubio-Topete, 999 F.2d 1334, 1338 (9th Cir. 1993) andUnited States v. Apfelbaum, 445 U.S. 115, 128 (1980)).

So our IRS official could say I didn’t do anything wrong at the same time she was claiming the privilege against self-incrimination. And who can blame her the way those Congresspersons were talking? Why answer questions from people who are already publicly accusing you of a crime?

This segues (at least if I force it) into how you might use these principles when you’re representing a criminal defendant who’s already charged with a crime. No one’s going to argue that your criminal defendant client doesn’t have a privilege against self-incrimination, so it really won’t come into play there. But what about a witness whom you’re going to accuse of a crime, say a domestic violence “victim” whom you’re going to argue assaulted your client just as much as your client allegedly assaulted him or her? Or the witness you’re going to accuse of committing some other act that could at least arguablyincriminate the witness, i.e., could be a mere “link in the chain of evidence” that might make someone think the witness was guilty of a crime even if he or she wasn’t? Or a witness whose answers to the government’s questions might furnish such a link?

While conflict rules prevent you personally from advising a witness of these risks and the potential privilege the witness may have, you can point out the above self-incrimination standard to the judge and argue that the witness needs an attorney. And if the witness gets an attorney, that attorney may advise the witness not to testify. So think about these rules as they apply not just to your client, but also to potential witnesses.