Recent Cases: Evidence — Privilege Against Self-Incrimination — Waiver and its Effect Upon Subsequent Proceedings

Witness testified before a federal grand jury regarding his participation in acts regarded by the grand jury as constituting a conspiracy to commit an offense against or to defraud the United States. The grand jury returned an indictment naming the witness as a co-con­spirator. At the trial of the other co-conspirators the government call­ed the witness and asked him a series of questions similar to those answered by him at the grand jury investigation. He refused to answer these questions on the ground that his answers would tend to incriminate him. Held: the witness was privileged to refuse to answer these questions. His voluntary testimony at the grand jury investiga­tion did not constitute a waiver of his privilege against self-incrimination. This seems to be a case of first impression in the federal courts. Earlier, federal cases have held, on the theory of waiver, that a witness who has already incriminated himself by his testimony before a grand jury cannot stop short of full disclosure to the grand jury of all the facts surrounding his crime, unless these facts tend to further in­criminate him concerning other crimes. The record of this testimony has been used as evidence in a later criminal prosecution. However, in the instant case, the government, on the theory of waiver, sought to force the witness, himself, to divulge the evidence at the subsequent criminal prosecution