Asserting the Fifth Amendment in Pa. Courts and Grand Juries Federal Law Applies

This column discusses the Fifth Amendment provision to the U.S. Constitution that provides for protection of a witness against compulsory self-incrimination. This topic was suggested after reading the Pennsylvania Supreme Court’s decisions regarding the conflicting rulings of the lower courts on the power of the state grand jury to issue reports, and the power of the district attorney to grant immunity to a witness. Likewise, members of the criminal defense bar report many instances where the assertion of the Fifth Amendment is often misunderstood by commonwealth prosecutors and supervising grand jury judges. This misunderstanding of the law and procedure was noted by the Investigating Grand Jury Task Force created by the Pennsylvania Supreme Court, which issued a report calling for training of supervising grand jury judges. See the report and recommendations of the Investigating Grand Jury Task Force, November 2019.

The Fifth Amendment can be asserted by a witness in any proceeding, civil or criminal, where the answer may incriminate him in future criminal proceedings. See Counselman v. Hitchcock, 142 U.S. 547 (1892). The provision must be accorded liberal construction. The privilege not only extends to answers that would support a conviction of a crime, but also those answers which would furnish a link in the chain of evidence needed to prosecute the witness for a crime. See U.S. Hoffman v. United States, 341 U.S. 479 (1951), citing Blau v. United States, 340 U.S. 159 (1950). The court in Hoffman dealt with the application of the Fifth Amendment to possible federal crimes. The Fifth Amendment protection against compulsory self-incrimination of the U.S. Constitution was later equally applied to state proceedings, Mallory v. Hogan, 378 U.S. 1 (1964). The Fifth Amendment is applied in the same manner in state court as in federal court, and there is not a lesser standard applied in state court.