Under both the Delaware and federal Constitutions, individuals have a privilege against being compelled to give testimony that would tend to subject them to criminal prosecution.98 The essence of the privilege is freedom from testimonial compulsion, and the sole effect of its protection is to prohibit the employment of legal process to extract from the person’s own lips an admission of guilt. The privilege applies not only to speech, but also to speech equivalents such as written statements or confessions, or actions which an individual might use instead of words for the purpose of intending to communicate an idea.99 The privilege, however, does not apply to physical evidence.100
An answer to a question tends to incriminate if the answer would either support the conviction of a crime or furnish a link in the chain of evidence needed to prosecute the witness.101 Although the privilege is available to witnesses in civil and criminal actions,102 the privilege is limited to testimony that may subject the witness to criminal prosecution. A witness may not be excused from answering a question on the ground that the answer may render the witness liable in a civil suit,103 or other consequences of a noncriminal nature, such as the loss of probation rights.103.1 The privilege may be raised whether or not the witness stands accused of a crime at the time of questioning.104
The privilege against self-incrimination is a personal one to be claimed by the witness under oath, and not by an attorney.105 A witness cannot avoid interrogation merely by stating that the answers may tend to be incriminating. The court must determine whether the question, after actually being asked, is such that any direct answer could possibly tend to be incriminating.106 Any doubt should be resolved in favor of upholding the privilege.107 The right of a witness to avoid self-incrimination overrides the right of a defendant to call witnesses on his or her own behalf.107.1 However, a judge has no duty to inform a defendant or witness at trial of the privilege against self-incrimination, as a judge is not required to assist a litigant on matters of law, evidence or trial practice.107.2
The privilege against self-incrimination can be waived, provided that such waiver is done in an affirmative manner.108 By testifying as to a fact or incident without invoking the privilege, a witness waives the privilege with respect to the details and particulars of that fact or incident. A sworn witness cannot be permitted to testify as to parts of an event and then withhold particular information under a claim of privilege.109 Similarly, when the witness has testified in a previous trial as to the same fact or incident without objection, the witness will be deemed to have waived the privilege in any subsequent trial.110 An answer to a question will not constitute a waiver of the privilege, however, unless the answer standing alone is an incriminating admission.111
A criminal defendant may invoke the privilege in certain circumstances to preclude others from testifying if such testimony implicates the defendant’s privilege against self-incrimination. For example, a criminal defendant can raise the privilege to prevent an arresting officer from testifying about the defendant’s silence while in custody.112
In a criminal case, where a witness refuses to answer questions on cross-examination by the defendant on the ground of potential self-incrimination, and such refusal is sustained, and immunity from prosecution is not granted, the direct testimony must be stricken if the cross-examination is not merely on collateral matters, but relates to details of the direct examination, such that there is a danger of prejudice to the defendant’s right to a fair trial.112.1
Where there is no reasonable fear of criminal prosecution, such as where the statute of limitations has passed, a witness may not invoke the privilege against self-incrimination.112.2
96. 11 Del. C. § 3514(b)(3).
97. 11 Del. C. § 3514(c).
98. U.S. Const. am. 5; Del. Const. art. I, § 7. See also Knowles v. Knowles, 7 Del. 133, 2 Houst. 133, 134 (Del. Super. 1859); Short v.State, 4 Del. Rpts. 588, 4 Harr. 588 (Del. Gen. Sess. 1845). The privilege against self-incrimination does not apply to corporations. A corporate officer may claim the privilege with respect to a crime committed by that officer and revealed by the corporation’s books, although the officer may be required to identify the books. In re Henry C. Eastburn & Son, Inc., 147 A.2d 921, 925 (Del. 1959). See also In re Atty. Gen’s Investigative Demand to Malemed, 493 A.2d 972, 975 (Del. Super. 1985); In re Blue Hen Country Network, Inc., 314 A.2d 197, 200 (Del. Super. 1973).
99. State v. Durrant, 188 A.2d 526, 528 (Del. 1963); State v. Smith, 91 A.2d 188 (Del. Super. 1952).
100. Melvin v. State, 606 A.2d 69, 71 (Del. 1992); Vincent v. State, 256 A.2d 268, 270 (Del. 1969) (privilege against self-incrimination not violated by testimony about scratches on defendant’s body); State v. Desmond, Cr. A. Nos. 1N84-l 1-1715-1716, slip op. at 4, Herlihy, J. (Del. Super. May 30, 1990) (photographs of injuries on defendant’s body and testimony about those injuries do not implicate privilege against self-incrimination); State v. Key, Cr. A. Nos. IN-81-09-10l6, 1019-22, slip op. at 3-4, Taylor, J. (Del. Super. Feb. 16, 1988) (no violation of right against self-incrimination in requiring defendant to display his right arm to the jury).
101. Husband v. Wife, 201 A.2d 171, 172 (Del. Super. 1964); Wilmington Savings Fund Society v. Tucker, C.A. No. 7977, slip op. at 5, Hartnett, V.C. (Del. Ch. Mar. 13, 1986).
102. Insurance Co. of North America v. Steigler, 300 A.2d 16, 18 (Del. Super. 1972), aff’d, 306 A.2d 742 (Del. 1973); Ratsep v. Mrs. Smith’s Pie Co., 221 A.2d 598, 599 (Del. Super. 1966); Mumford v. Croft, 93 A.2d 506, 508 (Del. Super. 1952); Wilmington Savings Fund Society v. Tucker, C.A. No. 7977, slip op. at 5, Hartnett, V.C. (Del. Ch. Mar. 13, 1986).
103. Knowles v. Knowles, 7 Del. 133, 2 Houst. 133, 136 (Del. Super 1859).
103.1. State v. Connor, No. 0101011985, slip op. at 12-13, Slights, J. (Del. Super. Jan. 19, 2005).
104. Mumford v. Croft, 47 Del. 464, 93 A.2d 506 (Del. Super. 1952); Wilmington Savings Fund Society v. Tucker, C.A. No. 7977, slip op. at 5, Hartnett, V.C. (Del. Ch. Mar. 13, 1986).
105. Steigler v. Insurance Co. of North America, 306 A.2d 742, 743 (Del. 1973); State v. Bryan, 551 A.2d 807, 813 (Del. Super. 1988), rev’d on other grounds, 571 A.2d 170 (Del. 1990); Ratsep v. Mrs. Smith’s Pie Co., 221 A.2d 598 (Del. Super. 1966); In re Blue Hen Country Network, Inc., 314 A.2d 197, 200 (Del. Super. 1973); Mumford v. Croft, 93 A.2d 506, 507 (Del. Super. 1952).
106. Swanson v. State, 956 A.2d 1242, 1245 (Del. 2008); Steigler v. Insurance Co. of North America, 306 A.2d 742, 743 (Del. 1973); Wilmington Savings Fund Society v. Tucker, C.A. No. 7977, slip op. at 5, Hartnett, V.C. (Del. Ch. Mar. 13, 1986).
107. Husband v. Wife, 201 A.2d 171 (Del. Super. 1964); Mumford v. Croft, 93 A.2d 506, 509 (Del. Super. 1952); Wilmington Savings Fund Society v. Tucker, C.A. No. 7977, slip op. at 5, Hartnett, V.C. (Del. Ch. Mar. 13, 1986).
107.1. Bohan v. State, 990 A.2d 421, 423 (Del. 2010); Flonnory v. State, 893 A.2d 507, 532 (Del.), cert. denied, 549 U.S. 834 (U.S. 2006).
107.2. Humes v. State, I.D. # 0402006855, slip op. at 11-12, Cooch, J. (Del. Super. Aug. 1, 2006).
108. See Krewson v. State, 552 A.2d 840, 842 (Del. 1988).
109. Halko v. State, 209 A.2d 895, 899 (Del. 1965); Ratsep v. Mrs. Smith’s Pie Co., 221 A.2d 598, 599 (Del. Super. 1966); Carey v. Bryan & Rollins, 105 A.2d 201, 203 (Del. Super. 1954); Burns v. Burns, 75 A.2d 514, 515 (Del. Super. 1950).
110. McBride v. State, 477 A.2d 174, 186 (Del. 1984).
111. Wallace v. State, 211 A.2d 845, 849 (Del. 1965) (denial of an allegation does not Constitute a waiver).
112. Styler v. State, 417 A.2d 948, 950 (Del. 1980).
112.1. Bentley v. State, 930 A.2d 866, 873-74 (Del. 2007).
112.2. Eden v. Oblates of St. Francis de Sales, C.A. No. 04C-01-069, Scott, J. (Del. Super. Dec. 14, 2007), app. refused mem., 941 A.2d 1019 (Del. 2007).
© 2010 David L. Finger