[Hitch]

Originally Posted by jgaiser

SCOTUS agrees.

Reiner was unique, and that wasn't the Court's entire ruling, nor the context; the Supremes never said that an innocent person can take the Fifth willy-nilly; they said, in Reiner:

We have held that the privilege’s protection extends only to witnesses who have “reasonable cause to apprehend danger from a direct answer.” Id., at 486. That inquiry is for the court; the witness’ assertion does not by itself establish the risk of incrimination. Ibid. A danger of “imaginary and unsubstantial character” will not suffice. Mason v. United States, 244 U.S. 362, 366 (1917). But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment’s “basic functions … is to protect innocent men … ‘who otherwise might be ensnared by ambiguous circumstances.’ ” Grunewald v. United States, 353 U.S. 391, 421 (1957) (quoting Slochower v. Board of Higher Ed. of New York City, 350 U.S. 551, 557—558 (1956)) (emphasis in original). In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth. 353 U.S., at 421—422.

The Supreme Court of Ohio’s determination that Batt did not have a valid Fifth Amendment privilege because she denied any involvement in the abuse of the children clearly conflicts with Hoffman and Grunewald. Batt had “reasonable cause” to apprehend danger from her answers if questioned at respondent’s trial. Hoffman, supra, at 486. Batt spent extended periods of time alone with Alex and his brother in the weeks immediately preceding discovery of their injuries. She was with Alex within the potential timeframe of the fatal trauma. The defense’s theory of the case was that Batt, not respondent, was responsible for Alex’s death and his brother’s uncharged injuries. In this setting, it was reasonable for Batt to fear that answers to possible questions might tend to incriminate her. Batt therefore had a valid Fifth Amendment privilege against self-incrimination.

The entire context was unique to Reiner; the girl in question reasonably feared that the defendant might endeavor to place her in legal jeopardy as an alternative theory (perpetrator) of the crime. Batt was in an unusual position. Overall, anyone pleading the Fifth has to have a reasonable belief that what they testify to will place them in harm's way of prosecution. The Fifth is not a smokescreen that can be deployed at will by someone who simply doesn't want to tell the truth, under some guise of self-incrimination. Even the Supremes stated that the determination as to what constituted a "reasonable fear" was for the court to decide--not merely the witness' assertion.

FWIW.

Hitch