TITLE FIVE — PRIVILEGES AND DISQUALIFICATION
Rule 505. Privilege Against Self-Incrimination
Privilege of Defendant in Criminal Proceeding.
Custodial Interrogation. A person has a right to refuse to answer any questions during a custodial interrogation.
Refusal Evidence.
No Court Order or Warrant. In the absence of a court order or warrant, evidence of a person’s refusal to provide real or physical evidence, or to cooperate in an investigation ordered by State officials, is not admissible in any criminal proceeding, except to challenge evidence of cooperation elicited by the defendant.
Court Order or Warrant. When State officials have obtained a court order or warrant for physical or real evidence, a person’s refusal to provide the real or physical evidence is admissible in any criminal proceeding.
Compelled Examination. A defendant has a right to refuse to answer any questions during a court-ordered examination for criminal responsibility.
At a Hearing or Trial. A defendant has a right to refuse to testify at any criminal proceeding.
Privilege of a Witness. Every witness has a right, in any proceeding, civil or criminal, to refuse to answer a question unless it is perfectly clear, from a careful consideration of all the circumstances, that the testimony cannot possibly have a tendency to incriminate the witness.
Exceptions.
Waiver by Defendant’s Testimony. When a defendant voluntarily testifies in a criminal case, the defendant waives his or her privilege against self-incrimination to the extent that the defendant may be cross-examined on all relevant and material facts regarding that case.
Waiver by Witness’s Testimony. When a witness voluntarily testifies regarding an incriminating fact, the witness may thereby waive the privilege against self-incrimination as to subsequent questions seeking related facts in the same proceeding.
Limitation. A waiver by testimony under Subsection (c)(1) or (c)(2) is limited to the proceeding in which it is given and does not extend to subsequent proceedings.
Required Records. A witness may be required to produce required records because the witness is deemed to have waived his or her privilege against self-incrimination in such records. Required records, as used in this subsection, are those records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.
Immunity. In an investigation or proceeding concerning treason, espionage, sabotage, or conspiracy against the State of Ridgeway, a witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required may tend to incriminate the witness or subject him or her to a penalty or forfeiture, where the witness, after having claimed his or her privilege against self-incrimination, has been ordered to testify or to produce evidence by a State Court Judge or Supreme Court Justice, as provided by 6 R. Stat. § 131.303. No court shall compel a witness who has claimed the privilege to testify or to produce evidence in any other matter, that statute conferring immunity in no other matter, and a witness who properly claims the privilege in any other matter shall be excused.
Foregone Conclusion. Where a defendant is ordered by the court to produce information, the act of production does not involve testimonial communication and therefore does not violate the defendant’s privilege against self-incrimination if the facts communicated already are known to the government and add little or nothing to the sum total of the government’s information. The State bears the burden of establishing, with reasonable particularity and as to each item, that the existence of the item, its possession or control by the defendant, and its authenticity are already known to it.
Use of Suppressed Statements. The voluntary statement of a defendant that has been suppressed because of a Miranda violation may nevertheless, in limited circumstances, be used for impeachment purposes.
Asserting the Privilege Before Testimony.
The privilege is personal to the witness and shall be asserted by the witness. A party may not assert it for a witness, and a party may not be heard to complain of a ruling upon it except as Rule 501(e) permits.
A witness who has been summoned and who intends to assert the privilege should so notify the party who summoned the witness and the court before the witness is called, so that the question may be resolved before the witness appears before the fact finder.
Where the court is informed that a witness intends to assert the privilege as to the whole of the witness’s testimony, the court shall inquire outside the presence of the fact finder. Where the court finds that the witness cannot answer any relevant question without a tendency to incriminate, the court may excuse the witness altogether. In every other case the privilege shall be asserted and ruled upon question by question.
Neither party shall call a witness before the fact finder knowing that the witness will assert the privilege, and no party shall structure an examination for the purpose of putting an assertion before the fact finder.
A defendant in a criminal case need give no notice of an intention not to testify, and shall not be required to elect whether to testify before the close of the State’s case.
The Court’s Inquiry.
The court shall determine, as a preliminary question under Rule 104(a), whether the standard stated in Rule 505(b) is satisfied. The privilege shall be sustained unless it is perfectly clear, from a careful consideration of all the circumstances, that the answer cannot possibly have a tendency to incriminate.
The witness need not prove that the answer would be incriminating, and shall not be required to disclose so much as would surrender the protection the privilege affords. Where the incriminating character of the answer is not evident from the question and the circumstances, the court may require the witness to state the ground in camera under Rule 501(i), in the presence of the witness’s counsel and of no party.
The inquiry shall be conducted outside the presence of the jury, as Rule 104(c) requires.
The court shall afford an unrepresented witness a reasonable opportunity to consult counsel before ruling, and shall inform the witness of the privilege, of the effect of an answer under Rule 505(c)(2), and of the consequence of a refusal to answer after the privilege has been overruled.
The court shall rule upon each question and shall state the ruling upon the record. Where the privilege is overruled, the court shall direct the witness to answer and shall fix the time for compliance. Rule 501(m) governs a refusal to comply.
Effect of an Assertion.
Criminal Proceedings. No inference shall be drawn against a defendant from the defendant’s refusal to testify or to answer, no comment shall be made upon it by the prosecution in examination or in argument under Rule 1107, and the court shall so instruct upon request. No inference adverse to a defendant shall be drawn from the assertion of the privilege by any other witness. This paragraph does not affect the admissibility of refusal evidence under Rule 505(a)(2).
Civil Actions: Party. Where a party to a civil action asserts the privilege in that action, the fact finder may, upon the request of an adverse party, draw an inference adverse to the asserting party upon the matter as to which the privilege was asserted. The inference is permissive and shall not alone support a finding upon an issue on which the adverse party bears the burden of proof. The inference shall not be drawn unless it is requested and the court finds that the adverse party has offered independent evidence upon the matter.
Civil Actions: Non-Party Witness. No inference shall be drawn against a party from the assertion of the privilege by a witness who is not a party, unless the court finds that the witness is so identified with the party, by control, employment, agency, or common interest, that the assertion is fairly attributable to the party.
Further Consequences in a Civil Action. Where a party asserts the privilege as to matter that the party has itself put in issue, the court may, on motion, strike the claim or defense to which the matter relates, preclude the party from offering evidence upon it, deem the matter established against the party, or stay the civil action pending the disposition of the criminal matter. The court shall consider whether the assertion was made to obtain an advantage in the civil action and shall impose the least severe measure sufficient to remove the unfairness.
Administrative and Disciplinary Proceedings. Rule 505(g)(2) and Rule 505(g)(3) apply in a proceeding before the administrative court and in a disciplinary proceeding.
Immunity; Compelled Testimony.
When Available. A witness may be compelled to testify or to produce evidence over a claim of the privilege only where the investigation or proceeding concerns treason, espionage, sabotage, or conspiracy against the State of Ridgeway, as 6 R. Stat. § 131.303 provides. The procedure is that prescribed by Rid. R. Crim. P. 17.1.
Order Required. Immunity arises from an order of a State Court Judge or a Supreme Court Justice and from nothing else. An agreement of the prosecution not to prosecute, a cooperation agreement within Rule 1102, a proffer agreement, and a promise of leniency are not grants of immunity, do not displace the privilege, and do not entitle any person to compel the witness to answer.
Sequence. The witness shall first claim the privilege. Only after the claim is made may the court order the witness to testify or to produce. An order entered before a claim is made confers no immunity.
Form of the Order. An order under this subdivision shall be in writing, shall identify the witness by username, shall identify the proceeding and the transactions, matters, or things as to which the witness is compelled, and shall recite that the witness claimed the privilege and that the matter is one described in Rule 505(h)(1).
Effect. Upon the entry of the order the witness shall not refuse to testify or to produce upon the ground of the privilege. A refusal after the entry of the order is punishable as contempt under Rid. R. Crim. P. 43, and, as to a summoned witness, under 6 R. Stat. § 131.302.
Scope of a Grant of Immunity.
Direct Use Barred. Testimony or evidence given under an order described in Rule 505(h) shall not subsequently be used against the witness in a criminal prosecution, as 6 R. Stat. § 131.303 provides.
Derivative Use Barred. Evidence derived directly or indirectly from testimony or evidence so compelled is likewise inadmissible against the witness in a criminal prosecution. Where the witness is thereafter prosecuted and objects, the State bears the burden of establishing, by clear and convincing evidence and as to each item of evidence it offers, a source wholly independent of the compelled testimony. The State should preserve, before the witness is compelled, a record of the evidence then in its possession, and its failure to do so shall be weighed against it.
Perjury Excepted. The immunity does not extend to a prosecution for perjury committed in giving the compelled testimony, as 6 R. Stat. § 131.303 provides, nor to a prosecution for a false statement made, or for a contempt committed, in the course of giving it. In such a prosecution the compelled testimony is admissible.
Impeachment. Compelled testimony is not admissible against the witness for impeachment in a criminal prosecution of the witness, except in a prosecution described in Rule 505(i)(3).
Other Proceedings. The immunity conferred by 6 R. Stat. § 131.303 bars use in a criminal prosecution. It does not by its terms bar the use of the compelled testimony in a civil action, in an administrative proceeding, or in a disciplinary proceeding, and a witness compelled under Rule 505(h) may be examined upon that testimony in such a proceeding.
Third Persons. A grant of immunity protects only the witness to whom it is given. It confers no protection upon any other person and does not render the compelled testimony inadmissible against another.
Organizations; Custodians of Records. The privilege is personal to a natural person. A corporation, association, agency, department, or other organization has no privilege against self-incrimination and may not refuse to produce its records upon that ground. A custodian of organizational records may not refuse to produce them upon the ground that the act of production would incriminate the custodian personally, but the act of production by the custodian shall not be used as evidence against the custodian in a criminal prosecution of the custodian.