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When a witness is called to testify in a Virginia criminal case, they have a right under the Fifth Amendment to the United States Constitution to refuse to testify – if their testimony would be self-incriminating. But under certain circumstances, such as an offer of immunity, they may still be required to testify.

The United States Supreme Court has held that a witness is not exonerated from answering a question simply because he invokes his Fifth Amendment privilege. Hoffman v. United States 341 U.S. 479, 71 S.Ct. 814 (1951); Hiibel v. Humbolt County, 542 U.S. 177, 124 S.Ct. 2451 (2004). With regard to a witness (as opposed to a defendant), the privilege relates only to incriminating statements, not the entirety of a witness’s testimony. Carter v. Commonwealth, 39 Va. App. 735, 576 S.E.2d 773 (2003). It is for the court to decide whether a witness’s silence is justified. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438 (1951); Ohio v. Reiner, 532 U.S. 17, 121 S.Ct. 1252 (2001).

Therefore, the trial judge may question a witness to determine whether their silence is justified.

The evaluation of whether the witness’s privilege applies to their testimony is to be made on a question-by-question basis.  A trial judge has the right, and sometimes the duty, to question witnesses.  Goode v. Commonwealth, 217 Va. 863, 234 S.E.2d 239 (1977).  The court must consider the question and determine its incriminating implications.  Carter v. Commonwealth, 39 Va. App. 735, 576 S.E. 2d 773 (2003).  The Virginia Supreme Court has lent guidance in North American Mortgage Investors v. Pomponio, 219 Va. 914, 252 S.E.2d 345 (1979).  The court must show (1) “how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness to some crime . . . and (2) that this suggested course and scheme of linkage not seem incredible in the circumstances of the particular case.”  The privilege guards against “real dangers, not remote and speculative possibilities.”  Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S.Ct. 1670 (1972).

If a witness’s answer to a Commonwealth question could, indeed, be incriminating, the witness may invoke their Fifth Amendment right against self-incrimination.  To overcome this privilege, the Commonwealth may offer immunity from prosecution to the witness. The Virginia Court of Appeals has held that “such cooperation/immunity agreements contravene no constitutional or statutory provisions.”  Commonwealth v. Sluss, 14 Va. App. 601, 419 S.E.2d 263 (1992).

A grant of immunity can take any of three forms.  “Transactional” immunity prohibits the trial of an individual for any offense about which he testifies.  Kastigar v. United States, 406 U.S.441, 92 S.Ct. 1653 (1972).  Testimonial immunity can also take the form of “use” or “derivative use” immunity.  These forms of immunity do not prohibit a subsequent trial of the witness.  However, they bar the use or derivative use of a witness’s statement in a subsequent prosecution.  Welsh v. Commonwealth, 14 Va. App. 300416 S.E.2d 451 (1992).  

The Virginia Supreme Court determined in Gosling v. Commonwealth, 14 Va. App. 158, 415 S.E.2d 870 (1992), that a guarantee of use and derivative use immunity is sufficient to compel a witness to testify.  This claim by the Commonwealth, coupled with Virginia Code § 19.2-270, protects a witness from subsequent prosecution.  

As a former prosecutor with the Office of the Commonwealth’s Attorney, Brad Thompson represents clients in serious traffic and criminal matters. He received training at the Advanced DUI Training for Prosecutors and the Trial Advocacy College.

To schedule an appointment, call today at (540) 375-2838.