The rituals associated with asserting Fifth Amendment rights are, by now, familiar ones.  We see them on television when crime show detectives issue Miranda warnings to the “perps” they are handcuffing and loading into squad cars.  We see them when government officials or corporate executives are called before Congress to testify regarding illegal arms sales or other alleged misconduct.  “Taking the Fifth” even has become a placeholder for not-so-tacit admissions in ordinary conversation.  It is thus not surprising that prosecutors and regulators often interpret invocation in the same ways that television audiences do:  as a signal, or even confirmation, of guilt.

The reality is quite different.  As the Supreme Court underscored in Ohio v. Reiner – a case in which the Court reversed a ruling by the Supreme Court of Ohio that a witness who denies all culpability does not have a valid privilege against self-incrimination – the Fifth Amendment was intended to protect both the innocent as well as the guilty.  In complicated financial, securities, or other white collar criminal cases, questions of legality often are matters of legitimate (and heated) debate.  At the outset of an investigation, it can be very difficult to gauge what theories of liability ultimately will be embraced or the significance that will be attributed to particular facts.  If the Bill of Rights means anything, “taking the Fifth” is an option meant to be exercised by the innocent and guilty alike. 

Despite this, the practical challenges associated with asserting Fifth Amendment rights remain significant.  Reiner notwithstanding, some courts continue to require witnesses to affirmatively demonstrate that responsive answers to particular questions will be inculpatory.  Although most courts have approached this issue with caution, adding the caveat that the Fifth Amendment’s protections likewise apply to non-inculpatory information that would furnish a “link in the chain” of evidence that could lead to prosecution, some courts have not been shy about probing the basis for a witness’ invocation with respect to specific questions.

However, as other cases have underscored, parsing testimony too finely carries its own considerable – and arguably greater – risks.  Some courts have found that an individual who voluntarily responds to discovery requests thereby waives his or her privilege against self-incrimination with regard to the entire “subject matter” of those discovery responses.  In practice, that “subject matter” can be construed broadly and unpredictably, particularly where judges in civil cases view the assertion of privileges as an unwelcome complication or an impediment to truth-seeking.  For example, in one particularly noteworthy case from the Southern District of New YorkOSRecovery, Inc. v. One Groupe Int’l, Inc. – the district court concluded that the defendant’s submission of an affidavit for the purpose of establishing his Fifth Amendment privilege resulted in the waiver of that privilege with respect to all matters relevant to that affidavit.  In another case from a different jurisdiction, a corporate executive’s response, in a representative capacity, regarding the identification of corporate documents was held to be a personal waiver of privilege with respect to the entire subject matter of the prior production.  In perhaps the most extreme examples of this reasoning, some courts have concluded that a criminal defendant necessarily waives his or her rights against self-incrimination in all respects merely by taking the stand and testifying in any capacity.

Asserting Fifth Amendment rights thus puts clients and their counsel squarely between the devil and the deep blue sea:  invoke too broadly, and they run the risk that prosecutors or judges will conclude that they have made a prohibited “blanket” assertion of the privilege; invoke too narrowly, and they run the risk that a court down the road will conclude that they have engaged in selective disclosure and must now answer all questions on those same subjects. 

If there is any solution to this irresolvable tension, it is to invoke clearly and consistently.  There always is a risk that invoking with respect to a particular subject matter will give rise to fights over the basis for the invocation.  That often cannot be helped.  But clients and counsel do have the ability to avoid waiving the privilege through inconsistent or selective disclosures.  None of the choices here are ideal, but this seems the safest one.