Privilege Against Self-Incrimination

To properly assert the privilege against self-incrimination as a basis for not responding to a question, “it need only be evident from the implications of the question [the individual is being asked], 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.” Hoffman v. United States, 341 U.S. 479, 486-87, 71 S. Ct. 814, 95 L. Ed. 1118 (1951).

The privilege against self-incrimination is “confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.” Hoffman, 341 U.S. at 486.

As a general rule, a witness in a civil proceeding may not invoke a blanket Fifth Amendment privilege. Instead, the witness must invoke this right in response to each individual question asked of him or her, in the criminal context the proponent of the privilege is required to make a showing that his or her testimony runs the risk of self-incrimination “only to the limited extent requisite to show that the privilege is properly claimed.” Matter of Grand Jury Empanelled Feb. 14, 1978, 603 F.2d 469, 477 (3d Cir. 1979).

Self-Incrimination with Immunity

When the Government offers immunity to a witness, the Government negates the possibility of the witness having “reasonable cause to apprehend danger” from testifying. See In re Lane, 224 F.Supp. 317, 318 (D.C.Ill. 1963).

The Supreme Court has found that “immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege.” Kastigar v. United States, 406 U.S. 441, 453, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).

The government faces a high standard and bears the burden for overcoming an assertion of silence in fear of self-incrimination:

“Once asserted, whether framed in ordinary or technical terms, the burden falls to the government to ‘make it ‘perfectly clear’ that the answers sought ‘cannot possibly’ tend to incriminate.’ . . . That requires resolving any ‘ambiguity’ and showing that the witness will not run the risk of self-incrimination . . .The Court should have asked the Government to make it ‘perfectly clear’ any fear was unfounded before ordering [the witness] to testify.

United States v. Morton, 993 F.3d 198, 205, 74 V.I. 689 (3d Cir. 2021).

This article was last updated on Friday, October 10, 2025.