Witness privilege against compelled production of documents and testimonial self-incrimination

Muhammad Arshad
18-Jan-2018 1Evidence Law Class (2017) @ PULC, University of the Punjab

In 1994, Webster Hubbell, in a plea agreement, promised to provide the Independent
Counsel with information about matters relating to the Whitewater investigation.
Subsequently, the Independent Counsel served Hubbell with a subpoena calling for
such information, and Hubbell invoked his Constitutional privilege against self-
incrimination and refused to state whether he had the documents the Independent
Counsel demanded. After being granted immunity, Hubbell produced the desired
documents. The Independent Counsel then used those documents to indict Hubbell
on tax and fraud charges. The District Court dismissed the indictment because the
evidence that would be used against Hubbell was derived either directly or indirectly
from his immunized act of producing those documents. Vacating that decision, the
Court of Appeals directed the District Court to determine the scope of the
Government's knowledge of Hubbell's financial affairs on the day the subpoena was
issued. The court determined that if the Government could not demonstrate with
reasonable particularity that there existed a prior awareness of the contents of the
documents and that those documents were in Hubbell's possession, then the
indictment was tainted. After acknowledging he could not meet this standard, the
Independent Counsel entered into a conditional plea agreement providing for the
dismissal of the indictment, unless the Supreme Court's disposition of the case made
it reasonably likely that Hubbell's immunity would not pose a significant bar to his
prosecution. United States of America v.Webster Hubbell - 530 US 27 (2000)

1. Does the Constitutional privilege against self-incrimination protect a witness from being
compelled to disclose the existence of incriminating documents that the Government is
unable to describe with reasonable particularity?
2. If the witness produces such documents, pursuant to a grant of immunity, may the
Government use them to prepare criminal charges against him?
3. Does the privilege against self-incrimination protect a witness in any suit or in any civil or
criminal proceedings from being compelled to disclose the existence of incriminating
documents?
4. What would be the Constitutional/Statutory protection, if the documents required were
voluntarily produced before the court of law by the spouse of witness in order to avoid any
indictment?
5. whether a competent witness who volunteers a statement gets the statutory protection?
6. whether a witness who refuses to answer but is compelled by the court, should alone get the
protection?
7. whether every witness duly summoned under statutory powers should be treated as
‘compelled’ to give evidence?
8. Whether privilege against testimonial self-incrimination is existed under the Constitution or
any Statute whenever government compels disclosure of testimonial evidence that could
later be used against the witness in a criminal proceeding?
9. What would be the consequences, if the witness voluntarily answers incriminating questions
put to him without invoking the privilege against testimonial self-incrimination?
10. Whether any Constitutional or Statutory privilege existed if the witness is compelled to give
non-testimonial evidence e.g. voice exemplar, for use against him in a criminal proceedings?

13. Production of title deed of witness, not a party.--No witness who is not a party to
a suit shall be compelled to produce his title deeds to any property or any
document in virtue of which he holds any property as pledges or mortgagee or any
document the production of which might tend to criminate him, unless be has
agreed to writing to produce them with the person seeking the production of such
deeds or some person through whom he claims.
14. Production of documents which another person, having possession, could
refuse to produce.-- No one shall be compelled to produce documents in his
possession, which any other person would be entitled to refuse to produce if they
were in his possession, unless such last mentioned person consents to their
production.
15. Witness not excused from answering on ground that answer will criminate - A
witness shall not be excused from answering any question as to any matter
relevant to the matter in issue in any suit or in any civil or criminal proceedings,
upon the ground that the answer to such question will criminate, or may lend
directly or indirectly to criminate, such witness, or that it will expose, or tend
directly or indirectly to expose. such witness to a penalty or forfeiture of any kind:
" Provided that no such answer, which a witness shall be compelled to give, shall
subject him to any arrest. or prosecution, or be proved against him in any criminal
proceeding.-except a prosecution for giving false evidence by such answer.

 13. Production of title deed of witness, not a party.--No witness who is not a
party to a suit shall be compelled to produce his title deeds to any property or any
document in virtue of which he holds any property as pledges or mortgagee or
any document the production of which might tend to criminate him, unless he
has agreed to writing to produce them with the person seeking the production of
such deeds or some person through whom he claims.
Cross Reference
130. Production of title-deeds of witness not a party (Indian Evidence Act, 1872)
Brief:
Privilege is created by Article 13 in respect of two kinds of documents --- title
deeds and incriminating documents.
In its earlier half, Article 13 provides that No witness who is not a party to a suit
shall be compelled to produce his title deeds to any property or any document in
virtue of which he holds any property as pledges or mortgagee .
In its latter half, the Article 13 provides that no such witness shall be compelled to
produce any document the production of which might tend to criminate him.
In both cases, a written waiver is permissible – as is provided in the following
words -- unless he has agreed to writing to produce them with the person seeking
the production of such deeds or some person through whom he claims.

Things to consider regarding Article 13
1. Is Article 13 applicable to any suit (Civil / Criminal) ?
2. Expression “Witness not party to the suit” ?
3.What type of documents are covered in this Article?
4.What right to documents is attached for qualification of privilege?
Think of……..
 Order 16 Rule 6 & Order 11 of Code of Civil Procedures 1908
 Section 94(1) of Code of Criminal Procedures 1898
 Accused being a CompetentWitness
 Document in virtue of which one holds a property or
document in possession
18-Jan-2018 Evidence Law Class (2017) @ PULC, University of the Punjab 6

Article 13 does not apply to parties to the suit. In civil and criminal proceedings, if the
document does not ‘incriminate’ him, the privilege of Article 13 is not attracted.
Under Order 16 Rule 6, CPC, any person may be summoned to produce a document,
without being summoned to give evidence.
Order 16 Rule 6-- Summons to produce document— Any person may be summoned
to produce a document, without being summoned to give evidence, and any person
summoned merely to produce a document shall be deemed to have complied with
the summons if he causes such document to be produced instead of attending
personally to produce the same.
Application for discovery and inspection of documents in the possession of a
witness who is not a party to the suit is regulated by Order 11 CPC.
Order 11, Rule 14--Production of documents— It shall be lawful for the Court, at
any time during the pendency of any suit, to order the production by any party
thereto, upon oath of such of the documents in his possession or power, relating
to any matter in question in such suit, as the Court shall think right; and the Court
may deal with such documents, when produced, in such manner as shall appear
just.

Section 94 of the CrPC, 1898 empowers the Court to issue summons for production;
Code of Criminal Procedure (Act 5 of 1898), s. 94(1)
"94(1). Whenever any Court, or, in any place beyond the limits of the towns of Calcutta and
Bombay, any officer in charge of a police- station, considers that the production of any
document or other thing is necessary or desirable for the purposes of any investigation, inquiry,
trial or other proceeding under this Code by or before such Court or officer, such Court may
issue. a summons, or such officer a written order, to the person in whose possession or power
such document or thing is believed to be, requiring him to attend and produce it, or to produce
it, at the time and place stated in the summons or order.(2) Any person required under this
section merely to produce a document or other thing shall be deemed to have complied with
the requisition, if he causes such document or thing to be produced instead of attending
personally to produce the same. (3) Nothing in this section shall be deemed to affect
the Indian Evidence Act, 1872, sections 123 and 124, or to apply to a letter, postcard, telegram
or other document or any parcel or thing in the custody of the Postal orTelegraph authorities.
Note:
however it has been specifically held by the Supreme Court of India in State of Gujarat v.
Shyamlal (AIR 1965 SC 1251, 1258 –Majority view) that Section 94(1) of CrPC does not apply
to the accused.

State of Gujarat v. Shyamlal (AIR 1965 SC 1251
The respondent, who was a registered money-lender, was prosecuted for failure to
maintain books in accordance with the Money-lenders' Act and Rules made
thereunder. An application under s. 94(1) Criminal Procedure Code, was filed
before the Magistrate by the prosecution for ordering the respondent to produce
certain account books.
The Magistrate, relying on Art. 20(3) of the Constitution refused to do so. The State
filed a revision before the Sessions Judge, who disagreed with the Magistrate and
made a reference to the High Court with a recommendation that the matter be
referred back to the Magistrate with suitable directions.
The High Court came to the conclusion that s. 94 does not apply to an accused
person and agreed with the Magistrate in rejecting the application..
on appeal to the Supreme Court. Held (Per P. B. Gajendragadkar, C.J., Hidayatullah,
Sikri and' Bachawat, JJ.) : The High Court was right in its construction of s. 94,
that it does not apply to an accused person. Having regard to the general scheme
of the Code and the basic concept of criminal law, the generality of the word
"person" used in the section is of no significance. If the legislature were minded
to make the section applicable to an accused person, it would have said so in
specified words. If the section is construed so as to include an accused person it is
likely to lead to grave hardship for the accused and make

investigations unfair to him, for, if he refused to produce the document before
the police officer, he would be faced with a prosecution under Sec. 175, Indian
Penal Code.……Even if the construction that the section does not apply to
accused' renders s. 96 useless because, no search warrant could be issued for
documents known to be in the possession of the accused, still, as far as the police
officer is concerned, he can use Sec. 165 of the Code of Criminal Procedure and
order a general search or inspection.…………
Per Shah, J. (Dissenting) : The words in s. 94(1) are general : they contain no express
limitation, nor do they imply any restriction excluding the person accused of an
offence from its operation. The scheme of the Code also appears to be consistent
with that interpretation. If s. 94(1) does not authorise a Magistrate to issue a
summons to a person accused of an offence for the production of a document or
thing in his possession no warrant may be issued under s. 96(1) to search for a
document or thing in his possession. To assume that the police officer in charge
of investigation may, in the course of investigation, exercise powers under s.165,
which cannot be exercised where the court issues a warrant, would be wholly
illogical…

Under Article 158 of the QSO 1984, a witness has to bring the document even if he wants to claim
privilege.
158. Production of documents: (1) A witness summoned to produce a document shall, if it is in his
possession or power, bring it to Court, notwithstanding any objection which there may be to its
production or to in its admissibility.The validity of any objection shall be decided on by the Court
Under Article 161 of QSO 1984, a judge is not authorized to compel a witness to produce any
document which he would be entitled to refuse to produce under Articles 4 to 14.
161. Judge's power to put questions or order production: The Judge may in order to
discover or to obtain proper proof of relevant facts, ask any question he places, in any
form, at any time, of any witness, or of the parties about any fact relevant or irrelevant;
and may order the production of any document or thing; and neither the parties nor their
agents shall be entitled to make any objection to any such question or order, nor, without
the leave of the Court, to cross-examine any witness upon any answer given in reply to
any such question:
Provided that the Judgment must be based upon facts declared by this Order to be relevant, and
duly proved:
Provided also that this Article shall not authorise any Judge to compel any witness to answer
any question or to produce any document which such witness would be entitled to refuse to
answer or produce under Articles 4 to 14, both inclusive, if the question were asked or the
document were called for by the adverse party; nor shall the judge ask any question which it would
be improper for any other person to ask under Article 143 or 144; nor shall he dispense with
primary evidence of any document, except in the cases hereinbefore excepted.

The law on the subject has now been altered in UK by the Civil Evidence Act 1968,
which abolishes the privilege in relation to civil proceedings. The relevant
provision of the Act reads as under:-
 16Abolition of certain privileges.
(1) The following rules of law are hereby abrogated except in relation to
criminal proceedings, that is to say—
(a) the rule whereby, in any legal proceedings, a person cannot be compelled
to answer any question or produce any document or thing if to do so would
tend to expose him to a forfeiture; and
(b) the rule whereby, in any legal proceedings, a person other than a party to
the proceedings cannot be compelled to produce any deed or other
document relating to his title to any land.
Cross, writing in 1958 (when the privilege was in force), in the following words:-
“It is doubtful whether a privilege of this nature ought to survive in modern times,
although it is difficult to think of cases in which its continued existence can do much
harm.” Cross on Evidence (1958), page 244.
From what is stated by Sarkar as to English law (15th Ed., 1999 p. 2053), if all
documents of title are subject to compulsory registration (under the Registration
Act 1908), the first part of sec. 130 of Indian Evidence Act 1872 (Article 13 of QSO
1984) does not serve any purpose. That was why such a principle to a like effect in
England was abrogated in 1968 by statute.18-Jan-2018 12Evidence Law Class (2017) @ PULC, University of the Punjab

THE REGISTRATION ACT 1908
17. Documents of which registration is compulsory. (1) The following documents shall be
registered, if the property to which they relate is situate in a district in which, and if they have
been executed on or after the date on which, Act No. XVI of 1866, or the Registration Act,
1886, or the Registration Act, 1871 or the Registration Act, 1877, or this Act came are comes
into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create declare, assign,
limit or extinguish, whether in present or in future, any right, title, or interest, whether vested
or contingent of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments (other than the acknowledgment of a receipt or payment
made in respect of any transaction to which an instrument registered under clause (a) relates)
which acknowledge the receipt or payment of any consideration on account of the creation,
declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or
reserving a yearly rent;

But, I have considerable reservations over the interpretation of Sarkar , as to how
far it will be correct to assume that most documents of title are registerable.
 Take the case of wills, they are not liable for compulsory registration.
 Take the case of a mortgage by deposit of title deeds where the language of the
memoranda of deposit – as is usually obtained by Banks in standard formats –
does not require registration.
 There are again cases of family settlements,
 acquisition of title by adverse possession,
 possession under an agreement of sale falling within the principle of part
performance under sec. 53A of theTransfer of PropertyAct or
 where property is ‘by treatment’ included in the ‘property of a firm’ by a partner
when it becomes firm’s property.
If a witness whose title is referable to any of these categories, he would be liable to
answer questions put to him, if the first part of Article 13 is deleted. These aspects
were not taken into account by either Cross and Sarkar. I, therefore, disagree
with the Sarkar’s Interpretation for dropping the words ‘his title deeds to the
property’.

Part-II Incriminating Documents (Article 13 QSO 1984)
The latter half of the Article 13 provides that not witness who is not the party shall be
compelled to produce an incriminating document. Analogous to this provision is
the one in Article 15 relating to incriminating questions.
Bowen LJ said in Redfern v. Redfern [1891] P 139 at 147, [1886-90] All ER Rep 524 at
528::-
“It is one of the inveterate principles of English law that a party can’t be compelled
to discover that which, if answered, would tend to subject him to any punishment,
penalty, forfeiture or ecclesiastical censure… ‘no one is bound to incriminate
himself”
Even in a criminal trial, any person accused of an offence is a competent witness for
the defence under sec. 342A of the Criminal Procedure Code (1898) and may give
evidence on oath in disproof of the charges made against him. Tukaram G. Gaokar
v. R.N. Shukla,AIR 1968 SC 1050
The question whether the latter half of the Article 13 applies to the accused in his
capacity as a witness has not been determined by the Superior Courts (either In
India or Pakistan) so far.

 Rajendra Agrawal vs Deepchand Agrawal on 7 February, 2017….
Writ Petition No.271/2017
This petition, at the instance of defendant No.1 in a suit for eviction, is directed
against the order-dated 20.12.2016 in Civil Suit No.8-A/2015; whereby an
application preferred by the petitioner under Order 8 Rule 1 of the Code of Civil
Procedure, 1908 has been rejected. Vide said application, petitioner sought leave
to bring on record the certified copy of sale deed dated 16.2.2004 executed by
Smt. Padma Singh in favour of Ahmad Husain and others, trial Court observed
that sale deed executed in favour of third person cannot be taken on record in
view of the provisions contained under Section 130 of the Indian Evidence Act,
1872. Evident it is from material on record that the eviction suit is brought by
respondent No.1 on the basis of title acquired by him vide sale deed dated
17.2.2011 by Smt. Writ Petition No.271/2017 Pawnesh wife of Narendra Singh
Maurya. Thus, neither Smt. Padma nor Ahmad Husain are parties to the
proceedings as would create any right in favour of petitioner to bring on record
the sale deed executed by said Smt. Padma in favour of Ahmad Husain in the
year 2004. Nor, it can be shown that said Smt. Padma and Ahmad Husain have
agreed in writing to produce the document. In view whereof, conclusions arrived
at by the trial Court cannot be faulted with as would warrant an indulgence.

 imrit Chamar Vs. Sridhar Panday and ors. ---- 13Ind.Cas.120
In the case of Imrit Chamar vs Sridhar Panday And Ors. on 29 August, 1911 it was held that
it is not disputed that the plaintiff had caused summonses to be served upon the witness
who had custody of the original and was called upon to produce it. The witness, however,
did not comply with the order of the Court. The plaintiff subsequently applied for the issue
of a warrant against the witness but no process-fee was paid for service of the writ. This
does not, amount to default on the part of the plaintiff. As was pointed out by this Court in
the case of Bhagabat Prasad Singh v. King Emperor 14 C.L.J. 120 : 11 Ind. Cas. 794 under
Section 130 of the Indian Evidence Act, no witness who is not a party to a suit can be
compelled to produce his title-deed to any property, or any document in virtue of which he
holds any property as pledgee or mortgagee or any document the production of which might
tend to incriminate him, unless he has agreed in writing to produce them with the person
seeking the production of such deed or some person through whom he claims. It cannot be
disputed that the lessee under the perpetual lease of the 21st December 1874 was entitled
to urge that the document was his title-deed, and that he was not bound to produce the
original except in the event contemplated by Section 130 of the Indian Evidence Act. It is
not alleged that the lessee had agreed with the plaintiff in writing to produce the original in
Court. Consequently, if, after service of summons upon him, he did not produce the
original, the plaintiff became entitled to use the certified copy as secondary evidence. The
first reason assigned by the Subordinate Judge in support of his order of rejection of the
document cannot, therefore be supported.

Pakistan
Article 13(b)Protection against self incrimination.
No person:- (b) shall, when accused of an offence, be compelled to be a witness
against himself.
India
Article 20(3) No person accused of any offence shall be compelled to be a witness
against himself
USA
The Fifth Amendment of the U.S. Constitution provides, "No person shall be
compelled in any criminal case to be a witness against himself”
Constitution of the state of Connecticut
SEC. 8. No person shall be compelled to give evidence against himself.

Under Article 13(b) of Pakistani Constitution, a person accused of any offence
can’t be compelled “to be a witness” against himself.
It may be noted that the accused is now a competent witness, but not
compellable under Article 13(b) of Pakistani Constitution .
evidence on oath in disproof of the charges made against him. Tukaram G. Gaokar
v. R.N. Shukla,AIR 1968 SC 1050
The question whether privilege of witness granted under Article 13, QSO 1984 could
be extended to the right against self incrimination covered under Article 13(b) of
our Constitution keeping in mind accused in his capacity as a competent witness
has not been determined by the Superior Courts (either In India or Pakistan) so
far.

If an act does not involve coercion, violence or brutality to the person it is not
compulsion; see Irvine v. California, (1954) 34V U.S. 128 at p. 133 : 98 Law Ed. 561
at p. 569. Black and Douglas JJ. said at page 141 that the Fifth Amendment
forbids the use of physical torture, psychological pressure, threats of fines,
imprisonment or prosecution or other governmental pressure to force a person
to testify against himself. If physical force is used there would be compulsion as
held in Rochin v. California, (1952) 342 U.S. 165: 96 Law Ed 183.
(Same is also imported in india in Ranjit Ram vs State, AIR 1961 All 456)
Rochin v. California, (1952) 342 U.S. 165
Rochin was charged with possession of morphine on the basis of evidence that
when confronted by a police officer with morphine lying near him he swallowed it,
that the force used by the police to extract it from his mouth proved unsuccessful,
that he was taken to a hospital where a doctor forced an emetic into his stomach
against his will and that the stomach pumping produced vomiting containing
morphine. On account of the force used against him he was held to be compelled.

"Broadly stated the guarantee in Article 20(3) is against "testimonial compulsion". It is
suggested that this is confined to the oral evidence of a person standing his trial for an
offence when called to the witness-stand. We can see no reason to confine the content of
the constitutional guarantee to this barely literal import. So to limit it would be to rob the
guarantee of its substantial purpose and to miss the substance for the sound as stated in
certain American decisions. The phrase used in Article 20(3) is "to be a witness." not merely
by giving oral evidence but also by producing documents or making intelligible gestures as
in the case of a dumb witness (see Section 119, Evidence Act) or the like. "To be a witness"
is nothing more than "to furnish evidence", and such evidence can be furnished through the
lips or by production of a thing or of a document or in other modes.“……The phrase used
in article 20(3) is "to be a witness" and not to "appear as a witness"; It follows that the
protection afforded to an accused in so far as it is related to the phrase "to be a witness" is
not merely in respect of testimonial compulsion in the court room but may well extend to
compelled testimony previously obtained from him. It is available therefore to a person
against whom a formal accusation relating to the commission of an offence has been
leveled which in the normal course may result in prosecution.
M. P. Sharma And Others vs Satish Chandra, 1954 AIR SC 300
The guarantee is against compelled testimony, both in and out of court. In our view, both the
points are concluded by the decision of the Supreme Court.
Farid Ahmed vsThe State, AIR 1960 Cal 32

The fundamental right of a person accused of any offence that he shall not "be
compelled to be a witness against himself", conferred by Article 20(3) of our
Constitution, is based on the English common law and the Fifth Amendment. It is
not disputed that the immunity conferred by our Constitution is from compulsion
to make an oral statement against oneself as well as from compulsion to produce
documentary evidence against oneself. Neither oral nor documentary testimony
can be compelled from an accused person;
see State of Kerala v. Sankaran Nair, AIR 1960 Kerala 392 (FB) and
the case of M.P. Sharma 1954 SCR 1077 : (AIR 1954 SC 300).
The immunity is (1) from compulsion (2) of being a witness and (3) against
oneself. Article 20(3) is not infringed if an accused person is compelled to be a
witness against someone else and not himself, or if he is compelled to do an act
which does not amount to his being a witness, or if he becomes a witness against
himself voluntarily and not on account of compulsion. In the present case I find
that all the three elements which are required for infringement of the guarantee
of Article 20(3) are lacking.
Ranjit Ram vs State, AIR 1961 All 456

14. Production of documents which another person, having possession, could
refuse to produce.-- No one shall be compelled to produce documents in his
possession, which any other person would be entitled to refuse to produce if they
were in his possession, unless such last mentioned person consents to their
production.
Brief Introduction
Article 14 refers to documents of another person in the possession of a witness i.e.
documents which, though physically in the possession of the witness, are indeed
the property of another person who has a right to object to their production. Of
course, if the owner gives consent, the witness having possession, cannot refuse
to produce this document.
The Article 14, on a plain reading, does not, however, reveal that the words “person
in his possession of documents” extends to the agent e.g. the lawyer of the owner,
servant or trustee, mortgagee etc., i.e. possessor of the document, the same
privilege which is enjoyed by the person whose property it is. It is pointed out
that the person in his possession of documents is referable to one having in his
‘temporary possession or control of documents belonging to another’ –as is
apparent from the words “any other person entitled to the possession”. This
aspect should be brought out.18-Jan-2018 23Evidence Law Class (2017) @ PULC, University of the Punjab

Moreover, Article 14 provides that no one shall be “compelled” to produce documents which
any other person would be entitled to refuse to produce if they were in his possession,
unless such last mentioned person consents to their production.
Now, the word “compelled” according to its grammatical meaning, would lead to the result
that the exercise of the privilege is optional, so that if the person in present possession of
the document waives the privilege, production of the document would be lawful. For
example, where the confidential communications between a client and his adviser are in
the possession of the client’s clerk who is called upon to produce them, and he chooses to
produce them, he can produce them, because he is not “compelled”. This is an anomalous
position, as it would certainly defeat the client’s privilege. This is only one illustration. There
could be many others -- e.g. the agent temporarily in possession of the principal’s
documents, the safe custodian of documents, and so on.
I am of the view point that the proper course should be to provide that the person in
present possession or control of the document should not be “permitted” [substitute for
“compellable”] to produce the documents without the consent of the person entitled to the
privilege. The word ‘compellable’ should be replaced by the word ‘permitted’ for otherwise
the privilege may be understood to mean the privilege of the person in possession such as
the agent who could waive the privilege. But, in reality, the agent cannot be allowed to
waive the privilege of the principal.

The State of Maharashtra Vs. the Nagpur Electric Light and Power Co. Ltd. and
anr. - AIR1961Bom242; (1961)63BOMLR559; [1961]31CompCas324(Bom);
ILR1961Bom508
In the present cases the Store Keeper and the Assistant Accountant of the
Company are not themselves the accused, but the documents which they are
asked to produce belong to the Company which is the accused. Under Section 131
of the Evidence Act (Article 14 QSO 1984) the Company can object to its own
employees producing its documents in Court without its consent, if the Company
itself cannot be compelled to produce them. It must therefore follow that it the
Company cannot be required by virtue of Article 20(3) of the Indian Constitution
(Ref. to Article 13(b) of Pakistani Constitution) to produce those documents, the
summonses issued against the Company's employees requiring them to produce
the Company's documents would be invalid.

The Fifth Amendment “Act-of-Production” Privilege May Prevent Document
Subpoena Compliance
To invoke his Fifth Amendment privilege, the stock promoter relied on the “act-of-
production” privilege which applies when document production is: 1) compelled;
2) testimonial; and 3) incriminating. In re Three Grand Jury Subpoenas Duces
Tecum Dated January 29, 1999, 191 F.3d 173, 178 (2d Cir. 1999).
Recently the United States Supreme Court, in United States v. Hubbell, 530 U.S.27
(2000), discussed at length the “act of production” privilege under the Fifth
Amendment which applies when, by producing documents in compliance with a
subpoena, a witness would admit that the documents existed, were in his
possession or control, or were authentic. It is not the contents of voluntarily
created documents that are privileged but the “testimony” inherent in the fact
that a witness is compelled to produce the documents.
Persons responding to subpoenas may invoke the “act-of-production” privilege if
responding “requires the respondent to make extensive use of ‘the contents of
his own mind'” to identify documents responsive to the subpoena. United States
v. Hubbell, 530 U.S. 27, 43.

A. Who Can Claim the Act of Production Privilege?
1. The act of production privilege applies to sole proprietorships. United States v. Doe, 465
U.S. 605 (1984).
2. if papers were deemed private and were in the personal possession of the person
claiming the privilege, the papers were protected, see Couch, 409 U.S. at 330-31
3. The act of production privilege does not apply to “collective entities.” Braswell v. United
States, 487 U.S. 99 (1988).
There is question as to whether the act of production privilege applies to closed partnerships.
For example, in Bellis v. United States, 417 U.S. 85 (1974), the United States Supreme Court
held that the privilege did not apply to the production of documents of a law partnership.
Nevertheless, the Supreme Court noted in Bellis that it was not addressing the question of
“a small family partnership” or a case where “there was some other pre-existing
relationship of confidentiality among the partners.” On that basis, at least one court has
held that the husband in a husband/wife partnership could assert a Fifth Amendment
privilege with regard to a subpoena served on the partnership. In re Grand Jury Subpoena
DucesTecum, 605 F. Supp. 174 (N.D.N.Y. 1985).

B. What Does the Act of Production Privilege Cover?
The act of producing evidence is protected under the Fifth Amendment if the
production of documents
(i) admits the existence of the thing sought by subpoena;
(ii) admits that the witness has possession or control of the thing sought by the
subpoena; or
(iii) authenticates the thing produced by admitting that the witness believes
that the thing is covered by the subpoena.

Exception to the “Act-of-Production” Privilege
a. There is a “foregone conclusion” exception to the act of production privilege when it is
already known that the documents requested exist and these documents are requested
with particularity. In that case, the witness is not “telling” anything that is not already
known.
Exception to the “act-of-production” privilege: If the government demonstrates that that it
knows requested documents exist and identifies their existence and location with “reasonable
particularity.” Fisher, 425 U.S. at 411.
b. the contents of voluntarily-prepared records are not protected by the Fifth Amendment
against compelled production, see US v. Doe, 465 U.S. at 610-12, 104 S.Ct. 1237
c. The act of production privilege does not apply to regulatory type records that are required
to be kept by law or items analogous to a “required record.” Baltimore City Dept. of Social
Services v. Bouknight, 493 U.S. 549 (1990).
This exception, however has limits and will not extend to regulations that have no
statutory purpose independent of a desire to “ferret out illegal activities.” See,e.g., Bionic
Auto Parts and Sales, Inc. v. Fahner, 721 F.2d 1072 (7th Cir. 1983) (Required records or trial
exception did not apply to auto dealers required to keep a report of altered serial numbers);
Marchetti v. United States, 390 U.S. 39 (1968) (Required records exception did not apply to
persons required to keep records of gambling activities when gambling was illegal).

15. Witness not excused from answering on ground that answer will criminate - A witness
shall not be excused from answering any question as to any matter relevant to the matter
in issue in any suit or in any civil or criminal proceedings, upon the ground that the answer
to such question will criminate, or may lend directly or indirectly to criminate, such witness,
or that it will expose, or tend directly or indirectly to expose. such witness to a penalty or
forfeiture of any kind:
Provided that no such answer, which a witness shall be compelled to give, shall subject him
to any arrest. or prosecution, or be proved against him in any criminal proceeding.-except a
prosecution for giving false evidence by such answer.
Brief Introduction
The principle here is that the right against self-incrimination is available only to a person who is
‘accused of’ an ‘offence’ under Article 13(b) of our Constitution and not to a witness except
that when he is prosecuted being an accused, his already tendered answers which
incriminated him cannot be used against him either for arrest, prosecution or in any
criminal proceeding. The sole exception is a criminal proceeding for punishing him for
‘perjury’.
Under the provisions of Art. 13(b) of the Constitution of Pakistan, an accused person has the
right to silence and the burden of proving guilt beyond reasonable doubt is on the
prosecution. But, when a person is examined in a case where he is not accused of an
offence, he does not have the protection. ‘Offence’ is defined in sec. 3(37) of the General
Clause Act 1897, as any Act or omission made punishable by any law for the time being in
force.

 Now Article 13(b) is a protection against self-incrimination of a person ‘accused’ of an
‘offence’ and the protection in the proviso to Article 15 is and has been held to be on the
same lines. The word ‘compelled’ is used in the proviso to Article 15 (but not in the main
part). Questions have arisen in Indian High Courts regarding,
1. as to whether a person who volunteers a statement gets the protection of the proviso
to Article 15 or
2. whether a person who refuses to answer but is compelled by the court, should alone
get the protection or
3. whether every person duly summoned under statutory powers should be treated as
‘compelled’ to give evidence.
In State (Delhi Administration) v. Jagjit Singh, AIR 1989 SC 598, an accused became an
approver and was pardoned under sec. 306(4) of the Code of Criminal Procedure, 1973. The
approver would have to be examined in the Committal Court as well as at the trial. But,
once he became an approver, he would cease to be an accused. Once he ceased to be an
accused, he would lose the protection against self-incrimination. He can be questioned
under sec. 132. Though, he may make a statement which could incriminate him, still sec.
132 proviso would protect him against prosecution. The court relied upon Laxmipat
Choraria v. State of Maharashtra, AIR 1968 SC 938.

 In Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938,
The appellants were convicted under Sec. 120B of the Penal Code and Sec. 167of the
Sea Customs Act. The case involved smuggling of gold into India. In that case. PW1
an employee of Air India was an accomplice but not an accused. She was examined
and her statements were recorded under Sec. 171A of the Sea Customs Act in which
she spoke against the accused but also spoke about her own role in sharing part of
the gold. The Supreme Court held that under Sec. 118 of the Evidence Act, she was a
competent witness. Under Sec. 132 she was bound to answer even if the questions
incriminated her but the section gave protection if she later became an accused.
Hidayatullah J (as he then was) observed that “In India, the privilege of refusing to
answer has been removed so that temptation to tell a lie may be avoided but it was
necessary to give this protection (i.e. under proviso to sec. 132). The protection is
further fortified by Art. 20(3) which says that no person accused of any offence shall
be compelled to be a witness against himself. This Article protects a person who is
accused of an offence and not those questioned as witnesses.”

He then clarified:
“A person who voluntarily answers questions from the witness box waives the privilege
which is against being compelled to be a witness against himself because he is then not a
witness against himself but against others. Sec. 132 of the Indian Evidence Act sufficiently
protects him since his testimony does not go against himself. In this respect the witness is
in no worse position than the accused who volunteers to give evidence on his own behalf or
on behalf of a co-accused. There too the accused waives the privilege conferred on him by
the Article since he is subjected to cross-examination and may be asked questions
incriminating him. The evidence of Elthyl Wong (PW1) cannot, therefore be ruled out as
that of an incompetent witness…. Her evidence is accomplice evidence”
“Ethyle Wong (PW1) was protected by Sec. 132 (proviso) of the Indian Evidence Act even if
she gave evidence incriminating herself. She was a competent witness…. The same
expression is used in the proviso to Sec. 132 of the Indian Evidence Act and there it means a
criminal trial and not investigation”

 We shall then move to Tukaram G. Gaokar v. R.N. Shukla, AIR 1968 SC 1050.
Here the appellant had sought a writ of prohibition against penalty being
imposed on him pursuant to a notice under sec. 112 of the Customs Act as also for
confiscation pursuant to a notice under sec. 111 of the said Act. The notices
issued under sec. 111 and sec. 112 were questioned as violating Art. 20(3) of the
Constitution. A regular criminal case was also pending against him in regard to
gold smuggling under sec. 120B of IPC and sec. 135 of Sea Customs Act.
In para 6 of the judgment, it was accepted that the appellant was an ‘accused
person’. It was however observed: “But, it is not possible at this stage to say that
he is compelled to be a witness against himself. There is no compulsion on him to
enter the witness box. He may, if he chooses, not appear as a witness in the
proceedings under ss. 111 and 112. The necessity to enter the witness box for
substantiating his defence is not such a compulsion as would attract the
protection of Art. 20(3).
evidence on oath in disproof of the charges made against him.

It may be very necessary for the accused person to enter the witness box for
substantiating his defence. But this is no reason for saying that the criminal trial
compels him to be a witness against himself and is in violation of Art. 20(3).
Compulsion in the conduct of Art. 20(3) must proceed from another person or
authority. The appellant is not compelled to be a witness if he voluntarily gives
evidence in his defence.” (Sec. 342A of the old Code corresponds to sec. 315(1) of
the 1973 Code).
The Supreme Court then added: “Different considerations may arise if he is summoned
by the Customs authorities under sec. 108 to give evidence in the proceedings under
ss. 111 and 112. But he has not yet been summoned to give evidence in those
proceedings. We express no opinion on the question, whether in the event of his
being summoned he can claim the protection under Art. 20(3) and whether in the
event of his being then compelled to give incriminating answers he can invoke the
protection of the proviso to sec. 132 of the Indian Evidence Act against the case of
those answers in the criminal proceedings. It may be noted that counsel for the
Customs authorities gave an undertaking in the High Court that they would not use
in any criminal proceedings the statement, if any, that might be made by the
appellant during the course of the adjudication proceedings.”

Summarising the position, the following principles can be gathered:
 1) In a criminal trial where a person is accused of an offence (offence as defined in the General Clause Act
refer to offences under the Penal Code or Special Acts) under Art. 13(b) of Constitution, the accused
cannot be put questions which will incriminate him. He cannot be compelled to answer such questions.
This is a prohibition against being questioned.
 In a criminal trial, it is open to the accused to waive the privilege by volunteering to give evidence under
sec. 315 and in that event, he will lose the protection underArt. 13(b).
 A person who is accused in a criminal case, if he opts to become an approver, he ceases to be an accused.
If he is not in the position of an accused, he is in the position like any other witness who is not an accused
and does not have the protection of Art. 13(b) of Constitution but still have protection under proviso to
Article 15 of QSO 1985.
 An accomplice who is not an accused can be asked incriminating questions and such statements can be
used against other accused. But so far as the accomplice is concerned, such statements cannot be used,
in view of proviso to Article 15 (sec. 132 of Indian Evidence Act, 1872), to arrest him or her or prosecute
him or her or levy any penalty or forfeiture. L. Choraria v. State of Maharashtra was a case of an
accomplice who volunteered to give evidence and it was held that she still had the protection under the
proviso to sec. 132. This case was followed in the case of an approver, who volunteered to give evidence i.e.
State vs. Jagjit Singh 1989 SC 598. These two decisions show that protection under proviso to sec. 132 is
available even if a witness volunteered to give evidence and was put incriminating questions.
 All witnesses (who are not accused) can under Article 15 (sec. 132 of Indian Evidence Act) be put
questions which incriminate them but such answers cannot be used, in view of the proviso to Article 15,
to arrest the witness or to prosecute him or to impose a penalty or forfeiture.

 Having summarized the law on the basis of the rulings of the Supreme Court, I
shall now refer to the questions discussed earlier as to whether the protection of
the proviso to Article 15 is available only to a witness who objects to an
incriminating question and answer to it or to others who answer an incriminating
question because of the statutory directive in the main part of Article 15?
The controversy has arisen because the main part of Article 15 which requires
every witness to answer questions which incriminate him does not use the word
‘compelled’ while the protection in the proviso against arrest, prosecution etc. is
given only to those witnesses who are ‘compelled’ to answer incriminating
questions.
 The case-law here goes back to 1878 when Queen Empress v. Gopal Das: (1878)
ILR 3 Mad 271. (FB) where the majority took the narrow view that the protection
in the proviso applies only to such witnesses who raised objection and then
answered (i.e. compelled) while Muthuswami Aiyer J gave a wider interpretation
to the word ‘compelled’ as including any witness who felt he has to comply with
the mandate in the main clause of sec. 132, and who did not object to the
question.

Note
 We may add that if the main part of Article 15 is indeed mandatory and the court
has no power to excuse a witness from answering an incriminating question, an
objection by witness is absolutely futile and if that be so, the distinction between
a witness who objected and another who had not objected but felt bound by the
main part of Article 15 loses significance.
 Another important aspect concerns an accused who volunteers to give evidence
on oath under sec. 315 CrPC. He waives the right / protection under Article 13(b)
of the Constitution so far as the particular charge is concerned. But, if he is
compelled to answer any incriminating questions not related to the charge, then
such evidence cannot be used against him in any criminal proceedings relating to
other charges (in his capacity being a witness), except a prosecution for giving
false evidence by such answer.

1. Testimonial evidence – communication of thoughts or information in response
to official questions or interrogations.
2. Physical evidence – all evidence other than testimonial. Can be either
appearance and bodily evidence
Types of Physical Evidence
 Appearance evidence – evidence obtained from body characteristics that suspect
routinely exposes to public.
 Bodily evidence – physical evidence obtained from body by
1) searching parts not normally exposed to public,
2) seizing biological materials, or
3) seizing foreign substances on or inside body

What is in the privilege against self-incrimination?
 The privilege against self-incrimination relates to “testimonial compulsion.”
The Fifth Amendment privilege against testimonial self-incrimination is violated whenever government
compels disclosure of testimonial evidence that could later be used against the person in a criminal
proceeding.
What is not self-incrimination?
 The courts have generally held that requiring the defendant to perform certain physical acts, or to give
physical evidence, is not considered to be testimony.
Claiming the Privilege Against Self-Incrimination
 The witness is not the sole determiner of whether he or she may claim the privilege.
 The decision is within the discretion of the trial judge.
Acts Not ConsideredTestimonial Compulsion Within the Privilege
 Providing blood
 Providing fingerprint exemplars
 Providing hair samples
 Speaking before a witness for voice identification purposes
 Exhibiting oneself before a jury

 Absolute right of the Accused to remain silent during custodial interrogation and
at their criminal trial.
 In all other situation, citizens/Witness may be compelled to appear and testify,
but are privileged to refuse to answer specific questions if the answer might tend
to incriminate them.
Invoking Fifth Amendment by Accused and Witness
 Criminal defendants have Fifth Amendment right to remain silent at their
criminal trial.
 Witnesses other than criminal defendants do not have right to remain silent.
They must take the witness stand and may invoke privilege against self-
incrimination only if they are asked questions that call for an incriminating
response.

Miranda requires the police to warn a suspect in custody:
 of his or her right to remain silent
 that anything the suspect says might be used in court against the suspect
 that the suspect has the right to have counsel present during questioning
 that counsel will be appointed for the suspect if the suspect cannot afford counsel
Dickerson v. United States
The Court in Dickerson confirmed that the United States Constitution requires that
Miranda procedures be followed by state and federal law enforcement professionals.
Exceptions to the Miranda Rule
 Public safety exception (NewYork v. Quarles)
 Routine booking questions exception (Pennsylvania v. Muniz)
 Undercover police questioner exception (Illinois v. Perkins)
4218-Jan-2018 Evidence Law Class (2017) @ PULC, University of the Punjab

Silverthorne Lumber Co. v. United States,
251U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920)
 When there is a violation of any constitutional provision relating to criminal
procedure, the evidence gained as a result of such violation may be inadmissible at
trial because of the exclusionary rule.
What “the fruit of the poisonous tree” means
 The theory of the fruit of the poisonous tree doctrine is that if the root of the tree is
poisoned, the fruit of the tree is also poisoned.
 It is important to note that the case may be dropped if, without the inadmissible
evidence, the case against the accused is insufficient to support a conviction.
United States v. Patane
The Court in Patane (2004) found that the introduction of non-testimonial evidence
obtained as a result of voluntary statements does not violate a suspect’s Miranda
right by negligent of non-deliberate failures to provide full Miranda warnings.

Fifth Amendment is violated when citizen is compelled to furnish self-incriminating
testimony. Three prerequisites:
1) Testimonial-Communication of person’s thoughts, beliefs, or knowledge. May be
oral written, or inferred from person’s conduct. Note: It does not include person’s
handwriting or voice characteristics, which are a form of physical evidence.
Compelled physical evidence does not violate Fifth Amendment.
2) Compulsion – Occurs when government demands disclosure of information that
is backed by threat of sanction
3) Self-Incrimination – To be self-incriminating, compelled answer must expose
person to risk of criminal prosecution.
Restrictions to invoke 5th Amendment to USA Constitution
A. Fifth Amendment does not apply to responses to routine booking questions.
B. Persons who have already been tried for crime about which they are
questioned may not invoke Fifth Amendment because of double jeopardy.
C. Persons who have been granted immunity may not invoke the 5th.

 If the question asked is obviously incriminating, the witness
may refuse to answer and that refusal will be upheld by the
judge.
 If the question asked does not appear to be one that would
incriminate the witness, the witness may still claim the
privilege; in order to determine whether the witness should
be permitted to invoke the privilege, the judge may decide
to question the witness.
 The witness may be compelled to answer a question when it
is clear the answer is not incriminating, even though the
witness may think that it is.
 If the witness absolutely refuses to answer the question, he
or she may be held in contempt.

 Criminal defendants – by voluntarily taking the witness stand and testifying on
their own behalf.
 Witnesses other than criminal defendants – when they voluntarily answer
incriminating questions without invoking the privilege. This is the right of the
witness alone. No one else may claim the privilege for a witness (a lawyer, for
example). The witness may not testify about some of the facts favorable to the
side calling the witness and then claim the privilege for other facts unfavorable
during cross-examination.
 Furthermore, if the privilege is waived, it is waived for the entire matter.

 When defendant chooses not to testify, judges and prosecutors are prohibited
from making any direct adverse comment during trial about defendant’s decision
not to testify.
 Witnesses other than criminal defendants are protected against adverse
consequences only when consequences are imposed as penalty for exercising 5th
Amendment rights
 When litigant in civil case invokes 5th Amendment and refuses to answer relevant
questions, judge may instruct jury to find in favor of opposing party on the
matter the witness has refused to disclose.
NOTE: In Griffin v. California Supreme Court overturned conviction of defendant
because prosecutor, during closing argument, told jury that defendant was only
person who could provide information about victim’s death and he had “not seen
fit to take the stand and deny or explain.”

 The witness may not refuse to answer a question because he or she anticipates
that the next question will be one that would incriminate the witness.
 Also, the fact that the answer will incriminate someone else is not grounds for
refusal to answer the question.
 Moreover, if the prosecution is barred from asking the question for some reason,
such as the guarantee against double jeopardy, the statute of limitations, or a
grant of immunity, the witness may not claim the privilege.
 The mere fact that the answer to a question will embarrass or degrade the
witness is not sufficient ground for refusing to answer.

 In making a determination whether a question is such that the
answer may incriminate the witness, the judge will take into
account:
▪ the immediate setting of the testimony,
▪ other testimony, and
▪ what the likelihood of possible prosecution of the witness may be.
 To meet the test of possible incrimination, the judge must
attempt to determine whether there is any possibility that the
witness has committed a crime, and that the answer might in
some way link the witness to that crime.

 Rules that allow a witness to be spared from prosecution if the witness furnishes facts that might
otherwise incriminate himself or herself.
 Only prosecutor has authority to grant immunity. If police promise immunity to elicit information
from a suspect, the suspect’s statement will be considered involuntary and will be suppressed.
TwoTypes of Immunity
 Use and derivative use immunity
 Transactional immunity
Use Immunity
 Use immunity prohibits the use of any testimony that is specifically immunized and any evidence
derived from it in a prosecution of the immunized witness. Use Immunity does not exempt from
prosecution; it bars the government from using any information revealed during compelled
testimony, including evidence derived from it. Use immunity (including derivative) is adequate to
satisfy 5th Amendment requirements for compelling testimony.
Transactional Immunity
Transactional immunity protects the immunized person from prosecution for all
activity mentioned in his or her immunized testimony.
 Transactional immunity is sometimes referred to as “blanket or absolute immunity” as it exempts
from prosecution for crimes revealed during compelled testimony
Supreme Court and Immunities
 Prior to 1972, when the United States Supreme Court held that use and derivative use immunity is consistent with the scope of the
privilege against self-incrimination, the earlier case law was believed to require only transactional immunity.
 Since 1972, a state may prosecute a witness granted use immunity as long as the evidence used has been obtained from sources other
than the witness's testimony.

 To invoke this privilege, a person must show that the government is seeking (i) to
compel him (ii) to give testimony (iii) that would incriminate him.
A. Scope
1. “Despite its cherished position, the Fifth Amendment addresses only a relatively narrow
scope of inquiries.” It only applies to testimony “that will subject its giver to criminal
liability.” Garner v. United States, 96 S.Ct. 1178, 1183 (1976).
a. The United States Supreme Court has limited the scope of the Fifth
Amendment privilege to answers that would support a criminal conviction or which
would furnish a link in the chain of evidence needed to prosecute the witness. See
Hoffman v. United States, 71 S.Ct. 814, 818 (1951).
b. The possibility of criminal prosecution based on the testimony must be
“substantial and real, and not merely trifling or imaginary....” United States v.
Apfelbaum, 445 U.S. 115, 128 (1980).
c. The privilege of a witness against self-incrimination does not extend to facts within
his knowledge the divulgence of which have no rational tendency to connect
him with the commission of a crime.
d. The Court presiding over the proceeding in which a Fifth Amendment privilege is
claimed has a duty to scrutinize a witness’ invocation of the privilege. “[T]he witness
is not exonerated from answering merely because he declares that in doing
so he would incriminate himself-- his say-so does not of itself establish the hazard of
incrimination. It is for the court to say whether his silence is justified.” Hoffman, 71
S.Ct. at 818.

2. Nevertheless, a witness is not required to incriminate himself in order to assert the
privilege. “To sustain the privilege, it need only be evident from the implications of the
question, in the setting in which it is asked, that a responsive answer...or an explanation of
why it cannot be answered might be dangerous because injurious disclosure could result.”
Hoffman, 71 S.Ct. at 818.
a. “The privilege must be sustained if it is not ‘perfectly clear’ that the witness's
answers ‘cannot possibly’ have a tendency to incriminate.” United States v. D’Apice,
664 F.2d 75, 77 (5th Cir. 1981).
b. Moreover, simply because a witness asserts her innocence regarding a crime
does not mean that she has no Fifth Amendment privilege with regard to
answering questions about the crime. In Ohio v. Reiner, 532 U.S. 17 (2001), a
babysitter testified at Reiner’s trial, under a grant of transactional immunity,
that she had nothing to do with a baby’s death. Reiner contended that the
babysitter did not have a privilege against self incrimination because she denied
committing the crime, therefore, the grant of immunity was improper.The Supreme
Court held that the babysitter's expression of innocence did not, by itself, eliminate
the babysitter's Fifth Amendment privileges.
3. A witness in federal court can invoke the privilege if his testimony could incriminate him in
a state court proceeding and vice versa. Murphy v. Waterfront Commission, 378 U.S. 52
(1964).
a. Nevertheless, a witness cannot claim the privilege simply because it might expose
him to prosecution in a foreign country. United States v. Balsys, 524 U.S. 666 (1998).

4. Fear that the government will prosecute a witness for perjury or not offer the witness a
favorable plea agreement if she testifies for another defendant at trial is not sufficient to
invoke Fifth Amendment protections.
a. In United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998), the defendant, Garbriel
Vavages, wanted to call Rose Manuel as an alibi witness. However, Manuel, was
awaiting sentencing in an unrelated case and had entered into a plea agreement with
the government. Manuel was concerned that the government would prosecute her
for perjury and/or withdraw from the plea agreement if she testified for Vavages. The
District Court allowed Manuel to invoke the Fifth Amendment and refuse to testify
based upon these concerns. The United States Court of Appeals for the Ninth Circuit
reversed Vavages’ conviction:
Manuels’ only stated basis for her blanket invocation of the Fifth Amendment privilege
was her belief that her alibi testimony, even if truthful, would subject her to a perjury
prosecution. The district court accepted this bases for invoking the Fifth
Amendment and ruled that Manuel ‘ha[d] every right to not testify. The district court
was mistaken.The government cites no cases for the proposition that fear of a perjury
prosecution as a result of truthful testimony is a sufficient basis for invoking the Fifth
Amendment privilege. And even if Manuel’s alibi testimony was false, the fear of a
legitimate perjury prosecution still would not support her invocation of the privilege:
“A witness may not claim the privilege of the [F]ifth [A]mendment out of fear that he
will be prosecuted for perjury for what he is about to say. The shield against self-
incrimination in such a situation is to testify truthfully, not to refuse to testify on the
basis that the witness may be prosecuted for a lie not yet told.”

5. A claim of privilege asserted in connection with a civil proceeding can, as an evidentiary
matter, be used against the witness in both federal and state courts. Baxter v.
Palmigiano, 425 U.S. 308, 318 (1976); Tex. Dep't of Pub. Safety Officers Ass'n v. Denton, 897
S.W.2d 757, 760 (Tex. 1995).
1. Nevertheless, a claim of privilege cannot be used against a person in a regulatory
proceeding. Spevack v. Klein, 385 U.S. 511 (1967) (Privilege can’t be used against
lawyer in a disbarment proceeding because it would have the effect of making the
exercise of the privilege “too costly.”)

B. Non-Testimonial Evidence
1. The Fifth Amendment does not apply to requiring a person to:
a. Provide physical samples such as hair or blood. Pennsylvania v. Muniz, 496
U.S. 582 (1990);
b. Submit to fingerprinting, photographing, or measurements, to write or
speak for identification, to appear in court, to stand, to assume a stance, to
walk or to make a particular gesture. Schmerber v. California, 384 U.S. 757
(1966); or
c. Provide voice exemplars. United States v. Dionisio,410 U.S. 1 (1973).
2. The privilege only prohibits extorting information from someone by forcing
him “to disclose the contents of his own mind.” Curci v. United States, 354
U.S. 118, 128 (1967).
3. A defendant can claim a Fifth Amendment right not to answer questions in
a psychiatric evaluation. Estelll v. Smith, 451 U.S. 454 (1981). Nevertheless,
the Texas Court of Criminal Appeals has employed a self-described “legal
fiction” to find a “limited waiver” in cases in which a defendant intends to
introduce his own psychiatric testimony. Lagrone v. State, 942 S.W.2d 602,
611-12 (Tex. Crim. App. 1997). See also, Brewer v. Quaterman, 475, F.3d 253,
256-57 (5th Cir. 2006) (Agreeing with the reasoning in Lagrone).

4. Dictating information for a witness to write down in order to learn how the
witness spells certain words constitutes “testimony” and, therefore, is
protected by the Fifth Amendment. United States v. Campbell, 732 F.2d 1017
(1st Cir. 1984); United States v. Matos, 990 F.Supp. 141 (E.D.N.Y. 1998).

C. Procedure atTrial
1. If a witness intends to assert a Fifth Amendment privilege in order not to
testify at trial, the trial judge must make an inquiry (this can be done in
camera) into the legitimacy and scope of the witness' assertion of his privilege. A
blanket assertion of the privilege without inquiry by the court, is not acceptable.
Therefore, in cases in which a trial judge excuses a witness without inquiry about
the validity or scope of the witness' privilege claim, the case will be reversed for
further findings. United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980).
2. The right to compulsory process does not afford a defendant, in either federal or
state court, the right to require a witness who is going to assert his Fifth
Amendment privileges do so in the presence of the jury. United States v. Griffin,
66 F.3d 68 (5th Cir. 1995); Ellis v. State, 683 S.W.2d 379 (1984).
a. It appears too that a defendant may object to a prosecution witnesses being
allowed to take the Fifth before the jury. United States v. Lacouture, 495 F.2d
1237, 1240 (5th Cir. 1974) (“[N]either side has the right to benefit from any
inferences the jury may draw simply from the witness' assertion of the
privilege either alone or in conjunction with questions that have been put to
him." ). See alsoWashburn v. State, 299 S.W.2d 706 (Tex.Crim.App. 1957)

1. Nevertheless, the prosecution may be allowed to call a witness before the
jury knowing the witness will take the Fifth when "the prosecutor's case
would be seriously prejudiced by a failure to offer him as a witness." United
States v. Kilpatrick, 477 F.2d 357 (6th Cir. 1973).
2. Likewise, the prosecution may be allowed to call a witness before the jury
knowing the witness will take the Fifth when the witnesses has been given
immunity but still refuses to testify. See Coffey v. State, 796 S.W.2d 175 (Tex.
Crim. App. 1990).

D. Waiver
1. Generally, “[a] witness who fails to invoke the Fifth Amendment against
questions as to which he could have claimed it is deemed to have waived his
privilege respecting all questions on the same subject matter.” United States v.
O’Henry’s Film Works, Inc., 598 F.2d. 313 (2d Cir. 1979), citing, Rogers v. United
States, 340 U.S. 367 (1951).
2. “An individual under compulsion to make disclosures as a witness who revealed
information instead of claiming the privilege [loses] the benefit of the privilege.”
Garner, 96 S.Ct. at 1182. In other words, the witness must “make a timely
assertion of the privilege” or he loses the privilege. Id. at 1183. Moreover, the
Supreme Court has “made clear that an individual may lose the benefit of the
privilege without a knowing and intelligent waiver.” Id. at 1182, n.9.
3. In sum, if a witness answers a question on a particular topic there is an implicit
waiver on other questions related to that topic unless that answers to the
additional question on the issue would “further incriminate” the witness. Rogers
v. United States, 340 U.S. 367 (1951).

a. Therefore, a witness must claim the privilege as to each question asked. For
example, if a witness claims the privilege in the grand jury in response to
one question, the grand jury can continue to question him about the same
or related topics and if he does not assert the privilege in response to the
additional questions, the privilege is waived. Quinn v. United States, 349 U.S.
155 (1955). But see, Hicks v. State, 860 S.W.2d 419, 430 (Tex. Crim. App.
1993) (Suggesting that continued questioning “on the merits” of a grand
jury witness once he exercised his privilege against self incrimination, itself
constitutes a violation of the privilege.).
b. Nevertheless, Rogers has been limited. For example, courts have held that
when a witness’ initial admission relates to only one element of an offense,
he does not waive the privilege against answering questions related to other
elements of the offense. See., e.g. Hashagen v. United States, 283 F.2d 345
(9th Cir. 1960); United States v. Courtnery, 236 F.2d 921 (2d Cir. 1956).
4. In any event, a waiver of the privilege is not “to be lightly inferred,” and courts
should indulge every reasonable presumption against finding a waiver. Emspak v.
United States, 349 U.S. 190, 196 (1955).

5. Waiver of the privilege is limited to proceeding in which the waiver was explicitly
or implicitly made. See, e.g., In re Morganroth, 718 F.2d 161 (6th Cir. 1983); Matter
of Berry, 680 F.2d 705 (10th Cir. 1982); Tucker v. Francis, 723 F.2d 1504 (11th Cir.
1994).
a. For example, if a witness waives the privilege before a grand jury, he can still
invoke the privilege at a trial on the merits. See., e.g., United States v.
Licavoli, 604 F.2d 613 (9th Cir. 1979); United States v. Housand, 550 F.2d 818
(2d Cir. 1997).
b. Likewise, if a witness waives the privilege in a civil trial, he can still invoke
the privilege in a criminal trial.
6. A defendant may remain silent at his sentencing hearing and his silence cannot
be used against him even though he pleaded guilty and engaged in a plea
colloquy admitting to the offense because the sentencing hearing is considered a
separate proceeding. Mitchall v. United States, 526 U.S. 314 (1999).
7. As set forth by the Supreme Court in Garrity v. New Jersey, 385 U.S. 493 (1967), if
a government employee (such as a police officer) is required to give a statement
in order to preserve his job, that statement cannot then be used against the
employee to support a criminal conviction.This is known as the Garrity Doctrine.

E. Other Issues
1. A prosecutor may not intimidate a witness into asserting his Fifth Amendment
rights in order to interfere with a criminal defendant’s right to compulsory
process. Brown v. Cain, 104 F.3d 744, 749 (5th Cir. 1997); United States v. Vavages,
151 F.3d 1185 (9th Cir. 1998).
2. A criminal defendant should seek a stay of any related civil lawsuit if he may be
called upon to assert his Fifth Amendment rights in that civil lawsuit. See, e.g.,
SEC v. First Financial Group, Inc. 659 F.2d 660, 667-69 (5th Cir. 1981)

1. Does the Constitutional privilege against self-incrimination protect a witness from being
compelled to disclose the existence of incriminating documents that the Government is
unable to describe with reasonable particularity?
Under Article 13(b) of our constitutional, no privilege against self-incrimination is available to the
witness as it is only available to the accused person; however Article 13 of QSO 1984 protects
a witness from the target of court trials from being compelled to answer questions designed
to elicit information about the existence of sources of potentially incriminating evidence.
See also. Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938
2. If the witness produces such documents, pursuant to a grant of immunity, may the
Government use them to prepare criminal charges against him?
A witness responding to subpoena, pursuant to a court order granting immunity, could not be
prosecuted on the basis of information in the documents produced if the government did not
have any prior, independent knowledge of the documents.
Foregone Conclusion doctrine set out in Fisher v. United States, 425 U.S. 391 (1976).
3. Does the privilege against self-incrimination protect a witness in any suit or in any civil or
criminal proceedings from being compelled to disclose the existence of incriminating
documents?
Redfern v. Redfern [1891] P 139 at 147, [1886-90] All ER Rep 524 at 528::-
“It is one of the inveterate principles of English law that a party can’t be compelled to discover
that which, if answered, would tend to subject him to any punishment, penalty, forfeiture or
ecclesiastical censure… ‘no one is bound to incriminate himself”

4. What would be the Constitutional/Statutory protection, if the documents required
were voluntarily produced before the court of law by the spouse of witness in order
to avoid any indictment?
Witness can object to his spouse producing his documents in Court without his consent
under the provisions of Art.14 of QSO1984, if the witness himself cannot be
compelled to produce them under Article 13, QSO1984. The summonses (if any)
issued against witness’s spouse requiring her to produce the witness's documents
would be invalid.
See also The State of MaharashtraVs. the Nagpur Electric Light and Power Co. Ltd
5. whether a competent witness who volunteers a statement gets the statutory
protection?
In a criminal trial, it is open to the accused (being a competent witness as per Tukaram G.
Gaokar v. R.N. Shukla) to waive the privilege by volunteering to give evidence under
sec. 315 and in that event, he will lose the protection under Art. 13(b) of Constitution.
Contrarily, L. Choraria v. State of Maharashtra was a case of an accomplice who
volunteered to give evidence and it was held that she still had the protection under the
proviso to sec. 132 (Art. 15,QSO 1984). This case was followed in the case of an
approver, who volunteered to give evidence i.e. State vs. Jagjit Singh 1989 SC 598. These
two decisions show that protection under proviso to sec. 132 is available even if a
witness volunteered to give evidence and was put incriminating questions.

6. whether a witness who refuses to answer but is compelled by the court, should
alone get the protection?
Queen Empress v. Gopal Das: (1878) ILR 3 Mad 271. (FB) where the majority took the
narrow view that the protection in the proviso of sec. 132 (Art. 15 QSO 1984)
applies only to such witnesses who raised objection and then answered (i.e.
compelled) while Muthuswami Aiyer J gave a wider interpretation to the word
‘compelled’ as including any witness who felt he has to comply with the mandate
in the main clause of sec. 132 (Art. 15 QSO 1984), and who did not object to the
question.
7. whether every witness duly summoned under statutory powers should be treated
as ‘compelled’ to give evidence?
Queen Empress v. Gopal Das: (1878) ILR 3 Mad 271. (FB)
(Minority view)
Muthuswami Aiyer J gave a wider interpretation to the word ‘compelled’ as including
any witness who felt he has to comply with the mandate in the main clause of
sec. 132 (Art. 15 QSO 1984), and who did not object to the question.

8. Whether privilege against testimonial self-incrimination is existed under the
Constitution or any Statute whenever government compels disclosure of
testimonial evidence that could later be used against the witness in a criminal
proceeding?
Under Article 13(b) of our constitutional, no privilege against testimonial self-
incrimination is available to the witness as it is only available to the accused
person; however proviso to the Article 15 of QSO 1984 protects a witness against
testimonial self-incrimination that could be used against him for any arrest. or
prosecution, or be proved against him in any criminal proceeding-except a
prosecution for giving false evidence by such answer.
See. Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938
9. What would be the consequences, if the witness voluntarily answers incriminating
questions put to him without invoking the privilege against testimonial self-
incrimination?
Generally, “[a] witness who fails to invoke the Fifth Amendment against questions as
to which he could have claimed it is deemed to have waived his privilege
respecting all questions on the same subject matter.”
Ref. United States v. O’Henry’s FilmWorks, Inc., 598 F.2d. 313 (2d Cir. 1979),

10. Whether any Constitutional or Statutory privilege existed if the witness is
compelled to give non-testimonial evidence e.g. voice exemplar, for use against
him in a criminal proceedings?
The privilege against self-incrimination only prohibits extorting information from
someone by forcing him “to disclose the contents of his own mind.” Curci v.
United States, 354 U.S. 118, 128 (1967).
The privilege against self-incrimination does not apply to requiring a person to give
non-testimonial evidence.
Ref. Pennsylvania v. Muniz, 496 U.S. 582 (1990); Schmerber v. California, 384 U.S.
757 (1966); United States v. Dionisio,410 U.S. 1 (1973).
The exception of this privilege in non-testimonial evidence is:-
1. where defendant intends to introduce his own psychiatric testimony. Lagrone v.
State, 942 S.W.2d 602
2. Dictating information for a witness to write down in order to learn how the
witness spells certain words constitutes “testimony” and, therefore, is protected
by the Fifth Amendment. United States v. Campbell, 732 F.2d 1017

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