The Fifth Amendment Against Self Incrimination in Houston, Harris County Texas

Recently, a Harris County prosecutor invoked her Fifth Amendment right against self-incrimination when subpoenaed to testify before a Houston grand jury relating to possible criminal activity in the Harris County District Attorney’s Office. In response to her invocation, the two criminal defense attorneys in Houston, who have been appointed special prosecutors of the grand jury, claimed the Harris County prosecutor was not a target. Because I have been often asked about the Fifth Amendment over my many years of being a criminal defense lawyer in Houston, Texas, I thought I would explain some basic aspects of the Fifth Amendment here and then follow up with a more detailed post, based on my review of the law.

The Fifth Amendment states: “No person shall be compelled in any criminal case to be a witness against himself.” Article I, Section 10 states that an “accused shall not be compelled to give evidence against himself.” The protection of the Fifth Amendment to the U. S. Const. applies to the states under the Fourteenth Amendment to the U. S. Const. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964); Malloy v. Hogan, 378 U.S. 1 (1964); Spevack v. Klein, 385 U.S. 511 (1967); Garrity v. New Jersey, 385 U.S. 493 (1967).

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. This is what the Harris County prosecutor contended—she was being forced to testify before a grand jury and could incriminate herself—so she asked to either not testify or be given immunity from prosecution if she did testify.

But the special prosecutor handling the grand jury investigation claimed the Harris County prosecutor’s testimony did not implicate the Fifth Amendment because the Harris County prosecutor was not a target. 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).

Just because the Harris County prosecutor may inculpate others with her testimony does not, standing alone, give her a right to invoke the Fifth Amendment. The privilege of a witness against self-incrimination does not extend to facts within her knowledge the divulgence of which have no rational tendency to connect her with the commission of a crime.

So what happens when a witness invokes the Fifth Amendment and the prosecutor claims the witness has no Fifth Amendment right. Well, the Houston court presiding over the grand jury proceedings 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, 712 S.Ct. 814, 818 (1951).

Nevertheless, and herein lies the rub, the witness is not required to incriminate herself 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.

“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).

Can the witness claim that the fact she could be prosecuted for perjury raises a Fifth Amendment claim. Not according to the Fifth Circuit Court of Appeals, which governs federal criminal cases in Texas. “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.” United States v. Whittington, 783 F.2d, 1210, 1218 (5th Cir. 1986).

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). “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. Put differently, the witness must “make a timely assertion of the privilege” or he loses the privilege. Id. at 1183.

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 her about the same or related topics and if she 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) (implying that continued questioning “on the merits” of a grand jury witness once he exercised his privilege against self incrimination is a violation of the privilege.).

Remember: if you have any doubt whether you need a criminal defense attorney in Houston Texas you should not hesitate to seek one. Call me at 713-227-4444 or email me if you have any questions about your Fifth Amendment rights. I am available for free consultations.