BLOG BULLETS:

• Think about possible remedies if a witness claims the privilege against self-incrimination as to only some questions.
• You can strike the witness’s entire testimony if the claim of privilege frustrates cross examination, if the claim of privilege “mutilates the truth,” and/or if the questions the witness wouldn’t answer pertain to matters directly affecting the witness’s testimony.
• But if the government tries to do this with a defense witness, it implicates a defendant’s constitutional right to present a defense, has been said to be an “extreme sanction,” and is to be done only when the claim of privilege truly frustrates cross-examination or “mutilates the truth.”

NOW THE BLOG:

I was in the middle of some posts on the privilege against self-incrimination a couple of weeks ago but I broke it up for my little Supreme Court update. You’ll find far more in-depth Supreme Court updates, including a lunchtime CLE presentation at our FPD office here in Los Angeles tomorrow, that’ll probably give you much more information, because it’s that time of year. For another good one, see Florida AFPD’s Paul Rashkind’s summary at http://www.rashkind.com/supct.pdf. (If I did this right, you can get there by just clicking on the link; otherwise, you’ll have to type it in.)

For myself, let me go back to the privilege against self-incrimination. Specifically, the question of remedy. What do you do when a witness asserts the privilege against self-incrimination as to just some questions? (Recall from my post three weeks ago that a witness, as opposed to a defendant, does have that choice; indeed, she can’t make just a blanket assertion of the privilege.) The answer actually depends on the circumstances, and there’s two lines of case law you can turn to depending on those circumstances.

If it’s a government witness and you want to strike the witness’s entire testimony, you can turn pro-government cases such as those cited in United States v. $133,420 United States Currency, 672 F.3d 629 (9th Cir. 2012) against the government. $133,420 United States Currency wasn’t itself a criminal case, but it summarized the rule for witnesses in criminal cases, cited numerous criminal cases, and then extended the identical rule to witnesses in civil proceedings. As summarized in $133,420 United States Currency:

We have long held that a district court may strike the testimony of a witness in a criminal proceeding to avoid a witness’s improper use of the Fifth Amendment privilege against self-incrimination as a sword as well as a shield.See United States v. Seifert, 648 F.3d 557, 561 (9th Cir. 1980). The purpose of the rule is to protect the integrity and truth-seeking function of the judicial system from the distortions that could occur if a witness could testify and then use the Fifth Amendment privilege to prevent any adversarial testing of the truth of that testimony. See Williams v. Borg, 139 F.3d 737, 742 (9th Cir. 1998) (noting that a criminal defendant, like any other witness, must “comply with the procedures used to give the jury a fair chance to evaluate [the testimony’s] truth”); Denham v. Deeds, 954 F.2d 1501, 1504 (9th Cir. 1992) (“Where a defense witness refuses to answer questions that go to the heart of the direct testimony on a central issue, . . . the truth-seeking function of the court is impaired.); see also Lawson v. Murray, 837 F.2d 653, 656 (4th Cir. 1988) (“Important public policy protects even the prosecution’s right to fair trials and the pursuit of truth, so that a similar principle should govern whether the recalcitrant witness was offered by the prosecution or by the defendant.”). By striking testimony that a party shields from cross-examination, a court can respect the witness’s constitutional privilege against self-incrimination while still preventing the witness from using the privilege “‘to mutilate the truth a party offers to tell.’” Lawson, 837 F.2d at 656 (quoting Brown v. United States, 356 U.S. 148, 156, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958)); see also United States v. St. Pierre, 132 F.2d 837, 840 (2d Cir. 1942) (Hand, J.) (stating that, although the exercise of the Fifth Amendment privilege against self-incrimination “deprives the parties of evidence, it should not furnish one side with what may be false evidence and deprive the other of any means of detecting the imposition”); cf. Williams v. Florida, 399 U.S. 78, 84, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970) (“That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination.”) A district court may strike such testimony “if invocation of the privilege blocks inquiry into matters which are ‘direct’ and are not merely ‘collateral’” to the proceeding. Seifert, 648 F.2d at 561.

$133,420 United States Currency, at 640-641.

But there’s case law with language on the other side if it’s a defense witness who asserted the privilege, and you want to prevent his testimony from being stricken. The Ninth Circuit has stated that striking the witness’s entire testimony when the witness claims his privilege against self-incrimination as to only some questions “is an extreme sanction.” United States v. Lord, 711 F.2d 887, 892 (9th Cir. 1983). There is a continuum of escalating remedies which the court must consider, and the most extreme sanction of striking the testimony in toto is to be used only as a last resort. Lawson v. Murray, 837 F.2d at 656, cited with approval in $133,420 United States Currency, 672 F.3d at 641. The Ninth Circuit has stated that this extreme sanction is to be applied “only when the question asked pertains to matters directly affecting the witness’s testimony,” Lord, 711 F.2d at 892, and/or “the cross-examination was frustrated” by the witness’s claim of privilege, United States v. Negrete-Gonzales, 966 F.2d 1277, 1280 (9th Cir. 1992). And the Fourth Circuit, in the case cited with approval by the Ninth Circuit in the $133,420 United States Currency case quoted above, has recognized that when the witness is a defense witness, “the defendant’s constitutional right to present witnesses in his own defense is implicated.” Lawson, 837 F.2d at 655.

What the Ninth Circuit has said in this respect isn’t just talk, moreover. There are cases in which the Ninth Circuit has found error in the use of this extreme sanction. See, e.g., Negrete-Gonzales, 966 F.2d at 1279-80; Lord, 711 F.2d at 892.

So keep in mind your options if a witness asserts the privilege against self-incrimination. First, you can make the witness testify and take it question by question if you want. Second, you can try to save the testimony the witness does give. Third, if it’s a government witness, you can try to strike the testimony given by arguing that the claim of privilege frustrates cross examination and “mutilates the truth” and that the questions you’ve asked aren’t collateral but pertain to matters directly affecting the witness’s testimony.