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Calling Witnesses Who Plan to Take the Fifth in Congress
Federal appellate courts have repeatedly made clear that it is not improper for a prosecutor to call and examine a witness in the grand jury knowing that the witness likely will decline to answer the questions based on the privilege against self-incrimination. United States v. Manujano, 425 U.S. 564 (1976); United States v. Wolfson, 405 F. 2d 779 (2d Cir. 1968); United States v. Duff, 529 F. Supp. 148 (N.D. Ill. 1981). No federal court has set aside an indictment because an individual was forced to assert his right against self-incrimination before the grand jury after his counsel informed prosecutors that he would invoke the Fifth Amendment in response to substantive questions.
Research has indicated that no private lawyer has been sanctioned by a bar association for posing questions to a witness at a civil trial or deposition when the witness repeatedly invoked the Fifth Amendment privilege in refusing to answer the questions. Indeed, the Supreme Court and federal appellate courts have ruled that a jury may draw adverse factual inferences in civil litigation from the invocation of the privilege not only against the individual asserting it but even against the corporation that employed him at the time of the events in question. Baxter v. Palmiagiano, 425 U.S. 308 (1976); Brink's Inc v. New York City, 717 F. 2d 700 (2d Cir. 1983).
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