30th Jul 2018

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FIFTH AMENDMENT – INVOKING OF

In general

The Fifth Amendment in the United States Constitution permits a witness to claim a privilege against self-incrimination. [Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal. App. 5th 948, 980] A person claiming the Fifth Amendment must do so with specific reference to particular questions asked or other evidence sought. [Victaulic Co. v. American Home Assurance Co., supra]

When a witness invokes the Fifth Amendment, the trial court must undertake a particularized inquiry with respect to each specific claim of privilege to determine whether the claimant has sustained his burden of establishing that the testimony or other evidence sought might tend to incriminate him. [Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal. App. 5th 948, 980 (insurance adjuster attempting to invoke the fifth amendment)]

Waiver of the privilege by partial testimony

A witness may elect to waive his or her privilege against self-incrimination. In addition, in some instances a waiver may be implied when a witness has made a partial disclosure of incriminating facts. It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. The privilege is waived for the matters to which the witness testifies, and the scope of the waiver is determined by the scope of relevant cross-examination. [Mitchell v. United States (1999) 526 U.S. 314, 321; Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal. App. 5th 948, 979] In other words, notwithstanding the significance of the privilege, a witness is subject to cross-examination on topics on which he or she has already testified. The right to cross-examination cannot be defeated by a valid claim of privilege, even a privilege as strong as that embodied in the Fifth Amendment. [Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal. App. 5th 948, 979]

The waiver rule rests primarily on the need to avoid leaving triers of fact with the limited version of relevant information that would be before them if a witness was permitted to at will pick a point at which to invoke the privilege. [People v. Williams (2008) 43 Cal. 4th 584, 616]

In the presence of the jury

Allowing a witness to be put on the stand to have the witness exercise the privilege before the jury would invite the jury to make an improper inference from the invocation of the privilege. [Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal. App. 5th 948, 981] Evidence Code § 913 states that it is impermissible for the jury to draw an inference from a claim of privilege regarding “any matter at issue in the proceeding”, and that any “party who may be adversely affected” by such an inference is entitled to a remedy. Having a witness exercise his or her privilege in the jury’s presence would be in direct violation of Evidence Code § 913. [People v. Richardson (2008) 43 Cal. 4th 958, 1011] Once a court determines a witness has a valid Fifth Amendment right to testify, it is improper to require the witness to invoke the privilege in front of a jury; such procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. [Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal. App. 5th 948, 981] See § C152.02 CROSS-EXAMINATION.

References in bold are to Mr. Cornblum’s text CALIFORNIA INSURANCE LAW DICTIONARY AND DESK REFERENCE, 2018 Edition, published by ThomsonReuters (1-800-344-5008 to order 3-Volume text).  2018 Edition now available.

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