Anyone who regularly practices white collar criminal defense knows how easy it is to successfully invoke the Fifth Amendment Privilege Against Self-Incrimination at the grand jury and trial stages of an investigation. Ohio v. Reiner, 532 U.S. 17 (2001) and a number of Supreme Court cases preceding it establish that the privilege protects the innocent as well as the guilty and applies to any statement even tending to incriminate the witness by furnishing "a link in the chain of evidence needed to prosecute the claimant for a…crime." Hoffman v. United States, 341 U.S. 479, 486-87 (1951).  This is why, unless the Fifth Amendment invocation is obviously frivolous, prosecutors very rarely seek to challenge such an invocation in court.

The facts in Ohio v. Reiner, and how the Supreme Court applied them, show how broad the Privilege Against Self-Incrimination is. Matthew Reiner was charged with involuntary manslaughter for the death of his two-month old son Alex. Evidence established that the infant died from “shaken baby syndrome” resulting from child abuse and that the injury occurred minutes before Alex stopped breathing. Reiner was with the child during that time frame. (Evidence established that Alex’s twin brother Derek suffered injuries as well.) Reiner maintained that Alex died earlier while in the care of babysitter Susan Batt. Reiner’s experts testified that Alex may have been injured during the period that he was under Batt’s care. At trial, the State called Batt to the stand. Batt invoked her Fifth Amendment privilege against self-incrimination and refused to testify, whereupon she was given transactional immunity and ordered to testify pursuant to Ohio Rev. Code Ann. § 2945.44. Batt testified that she had only demanded immunity on the advice of counsel and had in fact done nothing wrong. She denied any involvement in Alex’s death and denied shaking him. She denied causing any of the injuries suffered by Alex or Derek. Reiner was convicted and appealed his conviction. The Supreme Court of Ohio reversed Reiner’s conviction on the ground that Batt had no valid Fifth Amendment privilege against self-incrimination. The court held that Batt’s testimony could not have incriminated her because she “denied any involvement in the abuse.” The wrongful grant of immunity “prejudiced [Reiner] because it effectively told the jury that Batt did not cause Alex’s injuries.” The United States Supreme Court reversed, reaffirming that the Fifth Amendment privilege against self-incrimination “protects the innocent as well as the guilty,” and that “the facts here are sufficient to sustain a claim of privilege.” Reiner, 121 S. Ct. at 1253.

In its per curiam opinion, the Court noted its longstanding precedent that the privilege extends not only “to answers that would in themselves support a conviction” but also to “those which would furnish a link in the chain of evidence needed to prosecute the claimant.” Quoting Hoffman, the Court stressed that a potential witness need only show “from the implications 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.” Although the privilege extends to those witnesses who have “reasonable cause to apprehend danger from a direct answer,” rather than to those who fear a danger of “imaginary and insubstantial character,” and the inquiry on that issue is for the court, “we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment’s ‘basic functions . . . is to protect innocent men . . . who otherwise might be ensnared by ambiguous circumstances.’ Grunewald v. United States , 353 U.S. 391, 421.” (internal quotations omitted). Reiner, at 1254.

According to the Court, Batt had reasonable cause to fear danger from her truthful answers since she spent extended periods of time with Alex and his brother in the weeks prior to the discovery of their injuries and she was with Alex within one potential time frame of his death. The defense theory was that she caused the injuries and death. “In this setting it was reasonable for Batt to fear that answers to possible questions might tend to incriminate her.” Reiner, at 1255.

The January 6th Select Committee of the U.S. House of Representatives is poised to refer at least two "recalcitrant" witnesses to the Department of Justice for criminal contempt charges based in part on Fifth Amendment invocations that appear to be far from frivolous. Both former DOJ Acting Civil Division Chief Jeffrey Clark and unofficial Trump advisor John Eastman have indicated their intent to invoke the privilege. They have also raised other grounds other for refusing to appear or testify, but those grounds are not the subject of this post. 

Neither Clark nor Eastman appear to have any criminal exposure connected to the January 6 assault on the U.S. Capitol. They were reportedly involved, however, in plans or efforts to convince various state and/or federal officials to take official actions with a view toward changing the results of the 2020 Presidential election. Clark reportedly pushed a plan to convince certain state officials to invalidate election results. Eastman wrote two memos explaining various scenarios under which Vice President Pence might refuse to certify the Presidential Electors from key states. He also met with Pence to discuss this topic. Numerous public commentators and/or Democratic Representatives suggested that these actions of Clark and Eastman might be violative of federal criminal law. I have seen very little information to suggest that anything approaching a crime was committed by either man, however reprehensible one believes their actions were. But my views are irrelevant for Fifth Amendment purposes. When multiple Democratic House Members are suggesting that you may have committed crimes in connection with the January 6, 2021 certification of Electoral College votes, and a House Select Committee charged with investigating January 6 demands that you testify about those acts, your decision to invoke the Fifth Amendment can hardly be described as frivolous. To make a criminal referral to DOJ under these circumstances would be appalling, and I don't see any way that AG Garland would go to the grand jury  to seek an indictment. The case would be thrown out of court. Again, I am speaking only of the Fifth Amendment issue. For purposes of invoking the Fifth Amendment the witness must appear before the questioning body and cannot make a blanket invocation. The privilege must be invoked on a question by question basis.

(wisenberg)