The Oklahoma Bar Journal January 2024

out of the bag. 26 Under Oklahoma law, however, disclosure does not waive the privilege if it was erroneously compelled or “made without the opportunity to claim the privilege.” 27 In any event, when a witness intends on invoking the Fifth over a matter, due care should be taken to avoid answer ing any substantive questions that might have an arguable nexus, however attenuated, to the matter. DOES WAIVER OF THE PRIVILEGE IN ONE PROCEEDING WAIVE THE PRIVILEGE IN FUTURE PROCEEDINGS? No. “It is settled that a waiver of the Fifth Amendment privi lege is limited to the particular proceeding in which the waiver occurs.” 28 Thus, a witness who waives their privilege in one proceeding is not estopped from asserting “the privilege as to the same matter in a subsequent trial or proceeding.” 29 But crucially, this limitation does not bar the govern ment from later using an individ ual’s statements or testimony from

one proceeding against them in a subsequent criminal prosecution. 30

Conduct that predates the perti nent statute of limitations is typ ically fair game and not privileged under the Fifth Amendment. 19 But the analysis of what is beyond the statute of limitations may not be so simple. The witness may properly invoke the privilege if the poten tially incriminating testimony con cerns conduct that may fall under a longer statute of limitations, either because of a creative charging deci sion or the jurisdiction. 20 The fear of prosecution is also not well-founded if the witness is granted immunity. 21 Use immu nity (or “use and fruits” immu nity) under 18 U.S.C. §6001 et seq. removes the potential for criminal liability – whether in federal or state court and whether the poten tial use is direct or derivative. 22 It is considered “coextensive” with the scope of the Fifth Amendment privilege, allowing the witness to be compelled to testify once granted. 23 But “use” immunity does not guarantee that the witness will not be prosecuted for the underly ing conduct – it’s not “transactional immunity.” The government may still prosecute the witness if it can prove that its evidence “was derived from legitimate sources wholly independent.” 24 CAN A WITNESS INADVERTENTLY WAIVE THE PRIVILEGE? Yes. Once a witness provides testimony on a particular subject matter, they may be precluded from asserting the privilege over other testimony within the same area. 25 Because the Fifth Amendment seeks to protect the witness, once the witness opts to voluntarily waive their privilege of silence and make a materially incriminating statement, the cat’s

CAN THE PRIVILEGE BE WITHDRAWN?

Maybe. Allowing a witness to withdraw their previous invoca tion of the privilege is a fact- and circumstance-dependent determi nation left to the discretion of the judge. 31 Generally, courts should be “especially inclined” to permit withdrawal of the privilege, so long as “there are no grounds for believing that opposing parties suffered undue prejudice.” 32 But litigants trying to “abuse, manip ulate or gain an unfair strategic advantage over opposing parties” can find their request to withdraw the invocation denied. 33 This most often occurs when a party invokes the privilege during discovery only to later withdraw the privilege to submit a declaration in support of or opposition to a motion for summary judgment or to testify at trial. 34 In such cases, the later declaration is often stricken or new testimony precluded. 35

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.

12 | JANUARY 2024

THE OKLAHOMA BAR JOURNAL