California Law: When Can a Witness Invoke the Fifth Amendment Privilege Not to Testify
A trial court should reject a witness's invocation of the Fifth Amendment only when it "'clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege,'" (People v. Seijas (2005) 36 Cal.4th 291, 305 (Seijas). "California's Evidence Code states the test broadly in favor of the privilege: 'Whenever the proffered evidence is claimed to be privileged under Section 940 [the privilege against self-incrimination], the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.'" (Evid. Code, Sec. 404, italics added.) (Seijas, supra, 36 Cal.4th at p. 305.) [emphasis added].
The privilege against self-incrimination "must be accorded liberal construction in favor of the right it was intended to secure. It is a fundamental principle of our law that witnesses may not be compelled to incriminate themselves, and the scope of a witness's privilege is liberally construed. (Hoffman v. United States (1951) 341 U.S. 479, 486 [95 L. Ed. 1118, 71 S. Ct. 814]. "To invoke the privilege, a witness need not be guilty of any offense; rather, the privilege is properly invoked whenever the witness's answers 'would furnish a link in the chain of evidence needed to prosecute' the witness for a criminal offense." (People v. Cudjo (1993) 6 Cal.4th 585, 617 [25 Cal. Rptr. 2d 390, 863 P.2d 635], quoting Hoffman v. United States, supra, 341 U.S. at p. 486; see also People v. Seijas, supra, 36 Cal.4th at p. 304.)