Still More Still More Still More (Sorry) on the Privilege Against Self-Incrimination: How Long Does It Last?

August 13, 2013
By Hanging Out with Carl Gunn



  • The privilege against self-incrimination continues at sentencing even after a guilty plea.
  • The privilege also continues even after sentencing if the defendant pursues an appeal.
  • Your client can assert this privilege even if his real reason is that he doesn’t want to testify against others, so long as his testimony could also incriminate him.



I’ve been off for a couple of weeks of traveling and R&R, but I’m back – with one last post to offer in this series on self-incrimination. A final question that comes to mind is, “How long does the privilege last?”

Your first reaction might be that since it’s a privilege against self “incrimination,” it ends once a person pleads guilty and/or is convicted, since at that point he’s already “incriminated.” The case law makes clear this isn’t the case, however. The privilege continues even after a plea or conviction – and sometimes long after.

Initially, the cases – first, Ninth Circuit cases predating the sentencing guidelines and then a post-guidelines Supreme Court case – clearly hold that the privilege extends through sentencing. The Ninth Circuit so held long ago in cases such asJones v. Caldwell, 686 F.2d 454 (9th Cir. 1982), see id. at 456, and the Supreme Court so held in the post-guidelines case ofUnited States v. Mitchell, 526 U.S. 314 (1999). The Court explained in the latter case that “[w]here the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony,” id. at 326, and recognized that “in this case, as is often true in the criminal justice system, the defendant was less concerned with the proof of her guilt or innocence than with the severity of her punishment,” id. at 327.

The privilege may continue even after sentencing, moreover. To begin with, there’s always the question of whether the defendant might be providing that mere “link in the chain of evidence” suggesting guilt of some other crime. (For more on this standard, see my June 2013 post two months ago – “More on Fifth Amendment Rights from the News: On the Scope of the Privilege Against Self-Incrimination” – in the link at the right.) And even if there’s no real risk of this, the privilege can continue – if there’s an appeal. In acknowledging the principle that “where there can be no further incrimination, there is no basis for assertion of the privilege,” Mitchell explained that “that principle applies to cases in which the sentence has been fixedand the judgment of conviction has become final.” Id. at 326 (emphasis added). A judgment isn’t final so long as an appeal is pending, of course, so the privilege extends not just through sentencing but also as long as any appeal is pending – presumably including even a petition for writ of certiorari.

Finally, the privilege isn’t permanently waived or terminated if the defendant chose to offer testimony or other statements in prior proceedings in the case – for example, through testimony at a trial or through a letter or oral statement at sentencing. The Ninth Circuit recognized long ago that “a waiver of the Fifth Amendment privilege at one stage of a proceeding is not a waiver of that right for other stages.” United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir. 1978). This also follows from the Supreme Court’s case law. First, there’s the reasoning in the relatively recent Mitchell decision that the waiver of the privilege when the defendant provides a factual basis for a guilty plea does not constitute a waiver for later sentencing proceedings. See id. at 324. Second, there’s the rationale for the rule – discussed in my June 2013 “More on the Privilege Against Self-Incrimination: How Do You Claim It?” post in the link at the right – that a defendant who takes the stand cannot selectively claim the privilege in response to relevant cross-examination. That rationale is that a defendant “has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts,” Brown v. United States, 356 U.S. 148, 155 (1958) (quoting Fitzpatrick v. United States, 178 U.S. 304, 315 (1900)). This suggests that a waiver by offering testimony at the first trial wouldn’t continue over to a second post-reversal trial where the defendant did not testify, because he wouldn’t be laying out the favorable facts to the new jury.

Keeping in mind these principles – and a liberal and careful consideration of all the other possible prosecutions for which your client might technically be providing a “link in the chain of evidence” – can be important to your client in two ways. First, it protects him from being forced to provide information that may do additional damage to him in his own case. Second, it can be a way to prevent the government from forcing him to testify against other people just because he’s already pled guilty or been convicted. That your client’s real reason for testifying may be a desire not to incriminate others doesn’t mean he can’t use as his reason the technical possibility that he might incriminate himself.