You don't lose your 5th amendment privilege until you testify in your own defense as a criminal defendant.
#43 | Posted by gybeho
The nature of the proceeding, criminal or civil, is irrelevant. Waiver of the privilege can be effected by testifying to facts whether incriminating or exculpatory. Simple denial of illegal conduct is not testimony regarding facts. As I understand it, and that understanding is limited, she was subpoenaed to appear and gave an opening statement that was basically a denial of illegal activity. Whether that is a waiver depends on which of two different lines of case law a court might follow. More specifically, which of the two lines the DC Circuit follows.
An article discussing the relevant precedent is linked at #29, the one just prior to the one to which you responded.
If you read Brown you will see the distinction. In Brown the petitioner had voluntarily taken the stand in her own defense, something that she was not compelled to do. By answering questions that bolstered her case, she then cannot deny the opposition the opportunity. Again the the distinction is that the testimony is voluntary.
In the present narrow question, here the witness is compelled by congressional subpoena to appear and give testimony. Because she is compelled, she may use the 5th.
from Brown discussing McCarthy v. Arndstein
"A witness who is compelled to testify, as in the Arndstein type of case, has no occasion to invoke the privilege against self-incrimination until testimony sought to be elicited will in fact tend to incriminate. It would indeed be irrelevant for him to do so. If he is to have the benefit of the privilege at all, and not be confronted with the argument that he has waived a right even before he could have invoked it, he must be able to raise a bar at the point in his testimony when his immunity becomes operative. A witness thus permitted to withdraw from the cross-fire of interrogation before the reliability of his testimony has been fully tested may on occasion have succeeded in putting before the trier of fact a one-sided account of the matters in dispute. This is an argumentative curtailment of the normal right of cross-examination out of regard for the fair claims of the constitutional protection against compulsory self-incrimination."
The current case is an Arndstein type situation, not a Brown. Compelled testimony (congressional subpoena - 5th not waived) vs. voluntary testimony (some civil but primarily criminal - 5th can be waived).
Read the judicial analysis for Arndstein and Brown - it doesn't take long. The decisions clearly laid out the distinctions - provided those cases are still controlling.