More on the Privilege Against Self-Incrimination: How Do You Claim It?

June 25, 2013
By Hanging Out with Carl Gunn



  • A defendant completely waives the privilege when she takes the stand and is protected only by the limitations of the rules of evidence.
  • A witness, in contrast, can take the stand, choose to answer some questions, and then choose the point beyond which she will not go.
  • Not only that, but a witness has to claim the privilege on a question-by-question basis; she can’t simply refuse to take the stand at all.



In my last post, I talked about the fact that even an innocent person can claim the privilege against self-incrimination and used recent publicity about an IRS official doing just that as the segue into the discussion. That official’s apparent general assertion of the privilege against self-incrimination rather than asserting it in response to specific questions flags another issue in self-incrimination law, however. That’s when and how a witness and/or a defendant has to assert the privilege against self-incrimination. I’m not sure what the rules are for a witness in a congressional hearing, but the rule for a witness in a criminal trial and the rule for a defendant in a criminal trial are different from each other – and the differences are important to remember.

First, the rule for a defendant is clear. A defendant has to make an all or nothing choice. If she decides to take the stand, she waives the privilege against self-incrimination and has to answerall questions, so long as they are relevant, within the scope of the testimony given on direct examination, and otherwise comply with the rules of evidence. The rule was nicely summarized in the Ninth Circuit opinion rejecting the appeal of Patti Hearst, whom those older ones of us may recall as the newspaper magnate’s daughter who got kidnapped by a 1970’s “liberation army” and then joined them in some of their bank robberies under the “nom de guerre” of “Tania”.

[W]hen a defendant takes the witness stand, “his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination.” Brown v. United States, [356 U.S. 148, 154-55 (1958)]. “[A] defendant who takes the stand in his own behalf cannot then claim the privilege against cross examination on matters reasonably related to the subject matter of his direct examination.” McGautha v. California, 402 U.S. 183, 215, . . . (1971).

United States v. Hearst, 563 F.2d 1331, 1340 (9th Cir. 1977). Put another way, “[t]he scope of the defendant’s waiver is coextensive with the scope of the relevant cross-examination.”United States v. Black, 767 F.2d 1334, 1341 (9th Cir. 1985). The waiver can even extend to other uncharged crimes if they satisfy the standards of Rule 404(b). See Rhoden v. Rowland, 10 F.3d 1457, 1461 (9th Cir. 1993) (quoting United States v. Cuozzo, 962 F.2d 945, 948 (9th Cir. 1992)). In summary, a defendant who takes the stand pretty much completely loses the protection of the Fifth Amendment privilege and is protected only by the rules of evidence. (Though don’t forget those protections; in the right case, they may not be completely worthless.)

The rules are very different for a witness subpoenaed to testify in someone else’s trial, however. A witness is required to claim the privilege against self-incrimination on a question-by-question basis. United States v. Drollinger, 80 F.3d 389, 392 (9th Cir. 1996). And a mere witness does not waive the privilege by answering some questions. United States v. Seifert, 648 F.2d 557, 560-61 (9th Cir. 1980). “[W]hatever the standard of waiver for defendants who voluntarily testify, ‘an ordinary witness may “pick the point beyond which he will not go,” and refuse to answer any questions about a matter already discussed, even if the facts already revealed are incriminating, as long as the answers sought may tend to further incriminate him.’” Id. at 561 (quoting In re Master Key Litigation, 507 F.2d 292, 294 (9th Cir. 1974) and Shendal v. United States, 312 F.2d 564, 566 (9th Cir. 1963) (emphasis added in Master Key)).

So – unless the rules are for some strange reason different for Congressional hearings, which I admit I haven’t specifically researched – the IRS official I spoke of in my last post – and the hypothetical witness in your case I suggested in my last post you might tell the judge needs an attorney – couldn’t flat out refuse to testify at all. On the one hand, she would have to assert the privilege on a question-by-question basis. On the other hand, she could choose when to stop testifying, and could point to the very low “link in the chain of evidence needed to convict” threshold pointed out in last week’s post.