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mnottertail -> RE: Might get interesting... (5/23/2013 10:03:31 AM)
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Muhly2(to infinity);
And I hear you, and still say that while as a lawyer, and a damn fine speaker, you raise good points, but this is the opinion of several cases on a waiver explicit and implicit from a D. C Law firm:
1. Most circuits have held that providing discovery in a
civil or administrative proceeding, or giving testimony
in an earlier trial or before a grand jury usually will
not be found to constitute a waiver of the Fifth
Amendment privilege in subsequent proceedings.
a. A waiver of the Fifth Amendment privilege is
limited to the same proceeding in which the
witness testifies. See, e.g., United States v. Gary,
74 F.3d 304, 312 (1st Cir. 1996) (defense witness
who testified at first criminal trial retains valid
Fifth Amendment privilege not to testify at retrial
of same case); United States v. Cain, 544 F.2d
1113, 1117 (1st Cir. 1976) (co-defendants’
submission to deposition in unrelated criminal
proceeding not waiver of Fifth Amendment in
proceeding in which co-defendant was called as
witness); United States v. Licavoli, 604 F.2d 613,
623 (9th Cir. 1979).
b. The D.C. Circuit and the Eighth Circuit reflect the
minority view. See Ellis v. United States, 416
F.2d 791, 801 (D.C. Cir. 1969) (holding that
witness’s testimony before grand jury waived his
right to assert privilege at the subsequent trial);8
Walker v. Lockhart, 763 F.2d 942, 951-52 (8th
Cir. 1985) (holding that defendant waived Fifth
Amendment right against self-incrimination during
habeas corpus hearing).
2. Even within the same proceeding, a witness waives
the privilege only with respect to details directly
related to the topic on which he has voluntarily
testified. See Rogers v. United States, 340 U.S. 367,
373 (1951).
a. The majority of courts follow the "further
incrimination" test: where the witness might risk
further incrimination based on his additional
testimony, a waiver will not be found. See, e.g., In
re Master Key Litig., 507 F.2d 292, 294 (9th Cir.
1974); In re Seper, 705 F.2d 1499, 1501 (9th Cir.
1983); In re Folding Carton Antitrust Litig., 609
F.2d 867, 873 (7th Cir. 1979); United States v.
LaRiche, 549 F.2d 1088, 1096 (6th Cir. 1977);
United States v. Cox, 836 F. Supp. 1189, 1201 (D.
Md. 1993).
b. A minority of circuits, including the Second Circuit, follow the “distortion test”: if further testimony is necessary to avoid “distortion” of evidence already in the record, and the witness knew of his Fifth Amendment rights at the time he gave the testimony, then the privilege has been waived. See Klein v. Harris, 667 F.2d 274, 287-88 (2d Cir. 1981); United States v. Singer, 785 F.2d 228, 241 (8th Cir. 1986); E.F. Hutton & Co. v. Jupiter Dev. Corp., 91 F.R.D. 110, 116-17 (S.D.N.Y. 1981); Uni Supply, Inc. v. Gov’t of Israel, No. 92 Civ. 1489, 1993 WL 6204, at *2 (S.D.N.Y. Jan. 4, 1993).
can only say that such a learned opinion seems, at the best, arguable. LOL. But it is always great talking with you esquire. I learn alot. Hope I never need it.
I think that you are correct that in reality, the only way for compelling testimony will be immunity.
Further, your affiant sayeth not. (I'm taking the 5th.)
(meh, the paras didnt hold and one was missing, fixed) (this is not an implied waiver muhly, you'll never take me alive.)
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