When is privilege against self incrimination waived?

Does the witness waive it by taking the stand or he can listen to the question and then assert it. Or he can invoke it even during the examination or cross examination?

I will appreciate if somebody can please explain the concept.

I'm pretty sure the witness can plead the fifth after he has taken the stand. If he refuses to take the stand on his assertion of the fifth, he runs the risk of being held in contempt. The adverse attorney will surely ask him questions that don't invoke the fifth, so refusal to take the stand would be too overbroad a response--It would mean he is refusing to answer proper and improper questioning. Plus, the witness can't just plead the fifth and assume he is correct. If his assertion against self-incrimination is unfounded, that would be a determination for the bench to make while he is on the stand.

This right can be asserted:
- by anyone (D, W, party to a civil proceeding) IF the statement you are going to make would incriminate you.
- in front of any proceeding WHERE you testify under oath (exception: In NY, it cannot be asserted in front of Grand Jury)
- at the first opportunity, otherwise it's too late.
 
In 3 situations the privilege is INEFFICIENT:
- When the prosecutor grants immunity. In other words, if he guarantees that the W's testimony will not be used against the W. HOWEVER, the W can still be convicted if the prosecutors shows evidence derived from a source independent of the immunity (such as evidences obtained prior to the grant of immunity).
- When the D takes the stand to be cross-examined. As mentionned supra the D must take the 5th A at the first opportunity. In other words, the D should have done that before to prevent to be cross-examined. Now it's too late.
- If the S/L has run on the underlying crime since, in this circumstance, a W's testimony could not expose the W to criminal prosecution.

Cheers,
B.W.

Mona, I will give you my understanding of the 5th Amendment privilege against self-incrimination, with no claim to being an expert in this area. The privilege protects a person (not a corporation or representative of another) from answering a question, where that answer may provide evidence that could be used against the declarant's legal or penal interest. The person need not avoid taking the witness stand altogether to assert the privilege (although often the asserter is also a criminal defendant, who indeed may wish to avoid taking the stand completely.) On the other hand, the asserter can be a witness under subpoena who is compelled to take the stand. He cannot be denied his Constitutional privilege to avoid self-incrimination while testifying. The person must assert the privilege at his first opportunity to do so. In a court trial, this would generally occur diring direct examination. Thus, asserting the privilege during cross-examination would generally be too late, as the first opportunity had already passed. Similarly, a person who failed to assert the privilege at the first oppoortunity has waived it with regard to that question in later situations, at or after the trial. Regards,   Michael Shippey ________________________________ From: "

Thanks everybody.

Waived *by the _defendant_ _when he takes the stand,_ *for all the
subsequent criminal proceeding = IE : must claim it before
if assert his right of 5th amend and takes the stand - he still deemed
to have waived it for the scope of the cross examination
If wants to takes the stand in a grand jury trial, there is another
difference, i guess he must waive it in this case



Myriam

On 2/7/10 8:27 PM,