🛑 When and How a Witness Invokes the 5th Amendment Right Against Self-Incrimination

The Fifth of Amendment of the U.S. Constitution states, in part, that

No person…shall be compelled in any criminal case to be a witness against himself…

Additionally, Article 12 of the Declaration of Rights of the Massachusetts Constitution states that

No subject shall . . . be compelled to accuse, or furnish evidence against himself.

Lastly, Section 511(b) of the Massachusetts’ Guide to Evidence provides that,

Every witness has a right, in any proceeding, civil or criminal, to refuse to answer a question unless it is perfectly clear, from a careful consideration of all the circumstances, that the testimony cannot possibly have a tendency to incriminate the witness.

If a witness invokes his right against self incrimination, the judge will first appoint legal counsel to the witness. This will most likely be the public defender or bar advocate assigned to the court on that particular day.

The attorney will speak privately with the witness to determine whether he, the attorney, believes there is grounds for asserting the privilege.

After their meeting, the attorney and the witness will return to the courtroom. The judge will then direct everyone, except the attorney and the witness, to leave the courtroom.

A “Martin Hearing” will then be held, off the record, among the judge, the attorney, and the witness. The clerk will likely be present as well.

During this hearing, the witness will be placed under oath. The judge will then inquiry into the witness’s reason for invoking the 5th amendment and refusing to testify.

The attorney will aid in the response, if necessary.

The judge will then make a determination as to whether the privilege exist and the scope of the privilege.