Witness Waiver of the Fifth Amendment Privilege

Abstract:     
This Article addresses the often-criticized and frequently ridiculed practice of stating only one's name and address when called to the witness stand. This practice has its origins in the United States Supreme Court decision of Rogers v. United States, which held that when a witness discloses any incriminating fact he waives the Fifth Amendment privilege as to all details about that fact. This Article explores the rationales underlying Rogers, its practical scope and limitations, and a recently developed alternative test for evaluating whether a witness has waived the Fifth Amendment privilege as a result of prior incriminating statements. It also proposes a test for testimonial waivers that gives effect to the Fifth Amendment privilege and enables witnesses to comprehend the consequences of their actions before incriminating themselves.

Keywords: Fifth Amendment privilege, self incrimination, Rogers v. United States

JEL Classifications: K4

Accepted Paper Series