The Oklahoma Bar Journal January 2024

litigation during written discovery. 6 Not only does the privilege apply to interrogatories and requests for admission, 7 but the privilege can apply to document production as well. When “the act of producing documents … [has] a compelled testimony aspect” by implicitly communicating statements of fact – including, for example, admitting “that the papers existed, were in his possession or control, and were authentic” 8 – the Fifth Amendment protection is available. The require ment to assert the privilege over particular questions or discovery requests facilitates the ability to review, on a question-by-question basis, whether the Fifth Amendment is properly invoked. 9 WHO DETERMINES WHETHER THE INVOCATION IS JUSTIFIED? Ultimately, the judge decides whether the witness properly invokes the right – or, in other

words, that the witness is facing a “real and appreciable” threat of criminal liability. 10 But if “it clearly appears to the court that he is mistaken[,]” the judge may require the witness to testify. 11 A witness’s “say-so does not of itself establish the hazard of incrimi nation.” 12 In some instances, it’s “evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question … might be dangerous because injurious disclosure could result[,]” and a judge needs nothing further. 13 In nonobvious cases, it’s incumbent on the invoking party to explain why they fear criminal liability. 14 Because detailing their concern in open court may lead to forfeiting the very protections they seek to invoke, courts often hear about the potentially incriminating nature of the testimony in camera . 15 Once a “court determines that the

answers requested would tend to incriminate the witness, it should not attempt to speculate whether the witness will in fact be prose cuted.” 16 The legitimate possibility of charges is enough to sustain the privilege “absent clear evidence of an absolute bar to prosecution.” 17 WHEN IS THE FEAR OF CRIMINAL LIABILITY UNFOUNDED, RENDERING THE PRIVILEGE UNAVAILABLE? When the prosecution is barred, often because of the statute of limitations or immunity. A witness does not face a “real and appreciable” threat of prosecution when prosecutors are categorically prohibited from bringing charges. Even though a witness may wish to protect their privacy and not be exposed to potential disgrace or disrepute, they may be compelled to answer the question at issue if prosecution is legally impossible. 18

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL