BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 5 - Special Trial Problems

    5.03 Invoking The 5th Amendment

        5.03.1 Invoking the 5th Amendment: Inquiries And Procedures
        5.03.2 Invoking The 5th Amendment: Other Sources

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

5.03.1 Invoking The Fifth Amendment: Inquiries And Procedures

NCJIC Materials Related To This Issue:

25.16.8 Cautionary Instruction Regarding Invocation Of 5th Amendment In Front Of The Jury

34.7.4 5th Amendment Challenge to Comment On Refusal To Submit To Blood Alcohol Test

34.7.5 5th Amendment Challenge To Testimonial Response Of Defendant Elicited By Request For Blood Alcohol Test

300.23 Privilege Against Self Incrimination (5th Amendment)

The case law on this subject varies from circuit to circuit. The suggested procedure may be varied to conform with the law of the circuit, the practice of the district, and the preferences of the individual judge.

A. If a witness refuses to answer a proper question and invokes the Fifth Amendment privilege to justify that refusal, the trial court must determine whether the privilege has been properly claimed. The Fifth Amendment privilege extends to

1. answers that would support a conviction of the witness for violating a federal or state criminal statute; or

2. answers that would furnish a link in the chain of evidence needed to prosecute the witness for violating a federal or state criminal statute.

B. The following suggested procedure may be used when a witness claims the Fifth Amendment privilege:

1. Excuse the jury.

2. Explain to the witness the nature of the Fifth Amendment privilege. Ask the witness if he or she wishes to consult counsel. Consider the appointment of counsel.

3. Have the question repeated to the witness, and ask the witness if he or she still refuses to answer the question.

4. If the witness still refuses on the ground of the Fifth Amendment, the court should determine whether the claim of the privilege is appropriate. Be careful not to interrogate the witness about the claim in such a way as to force the witness to surrender the privilege in order to claim it.

5. If the witness makes a prima facie showing of the validity of his or her claim, the party seeking the answer then has the burden to demonstrate that the answer could not possibly tend to incriminate the witness.

6. Sustain the Fifth Amendment claim if you find that the witness has reasonable cause to believe that answering the particular question might tend to incriminate him or her. The criterion to be applied in making this determination is the possibility of prosecution, not the likelihood of prosecution.

As the Supreme Court found in Hoffman v. United States, 341 U.S. 479, 486 (1951):

To sustain the privilege it need only be evident from the implication of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.

7. The witness may not assert a blanket claim of the privilege as to all questions. For each question, the witness must assert or not assert the privilege. Out of the jury’s presence, the court must rule as to each question whether the witness’s claim of privilege is sustained or overruled. The court may sustain a blanket assertion of the privilege only if it concludes, after inquiry, that the witness could legitimately refuse to answer all relevant questions.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

5.03.2 Invoking The Fifth Amendment: Other Sources

NCJIC Materials Related To This Issue:

25.16.8 Cautionary Instruction Regarding Invocation Of 5th Amendment In Front Of The Jury

34.7.4 5th Amendment Challenge to Comment On Refusal To Submit To Blood Alcohol Test

34.7.5 5th Amendment Challenge To Testimonial Response Of Defendant Elicited By Request For Blood Alcohol Test

300.23 Privilege Against Self Incrimination (5th Amendment)

Manual for Complex Litigation, Fourth 101, 228, 525 (2004)

Donald S. Voorhees, Manual on Recurring Problems in Criminal Trials 118–30 (5th ed. 2001)