6.4 HOW THE PRIVILEGE IS ASSERTED
A defendant at trial cannot be called by the prosecution. The defendant, therefore, automatically asserts the privilege by not taking the stand. Any other person, however, must affirmatively claim the privilege to avoid waiving it. 26 A claim of privilege must be honored unless it is "perfectly clear" that the answers of the witness "cannot possibly" be incriminating. 27 It is
[Page 295]
possible, depending upon the facts of a given case, to assert the privilege for the first time on cross-examination. 28 The privilege against self-incrimination must be expressly invoked.
In Salinas v. Texas, 29 the defendant had remained silent in response to an incriminating question during a non-Mirandized, noncustodial police interrogation. The U.S. Supreme Court held that the prosecution's comments about the defendant's silence during closing argument did not violate the Fifth Amendment. In Virginia, however, at least one Virginia case has held that the prosecution cannot comment on the defendant's silence in a noncustodial interview. 30
The privilege extends to innocent persons who otherwise might be ensnared by ambiguous circumstances. A person cannot be denied the privilege simply because he or she denies any involvement in the crime. However, the privilege extends only to witnesses who have reasonable cause to apprehend danger from the answer. The trial court must decide whether the danger is real or insubstantial. 31
In Carter v. Commonwealth, 32 the Virginia Court of Appeals found that the simple invocation by a witness of the privilege against self-incrimination does not end the responsibility of the trial judge. The judge must determine whether the privilege was properly invoked.
'The witness is not exonerated from answering [questions] merely because he declares that in so doing he would incriminate himself—his say-so does not itself establish the hazard of incrimination.' . . . To determine whether the privilege is properly invoked, a trial court need not demand explicit answers to all potential questions. . . . 'To sustain the privilege, it need only be evident from the implications
[Page 296]
of the question, in the setting in which it is asked, that a responsive answer . . . might be dangerous.' 33
In Reyes v. Commonwealth, 34 the Virginia Court of Appeals found that the trial court appropriately balanced the defendant's right to compel witnesses against a co-defendant's Fifth Amendment privilege against...
