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OHIO STATE LAW JOURNAL SIXTH CIRCUIT REVIEW
Taking the Fifth: Walters v. Dale and the Evolution
of the Scope of the Fifth Amendment Privilege
Against Self-Incrimination
HEATHER VAN HULL*
The Fifth Amendment's privilege against self-incrimination has long been
considered a bedrock principle of the American judicial system.1 Without the
privilege against self-incrimination, the American judicial system would be an
inquisitorial, rather than an accusatorial, system of prosecution.2 However,
often the privilege against self-incrimination is fundamentally at odds with the
greater purposes of trials-fact-finding, truth seeking, and the swift delivery of
justice.3 Allowing criminal defendants or other witnesses to remain silent puts
roadblocks in the fact-finding process and arguably protects the guilty.4 It is this
disconnect between the Fifth Amendment's privilege against self-incrimination
and the judicial system's primary goals of enforcing the laws and delivering
justice that courts have grappled with since the nation's founding.
The Sixth Circuit's recent decision in Walters v. Dale represents the courts'
latest attempt to clarify the scope of the privilege against self-incrimination. In
Walters, a case of first impression, the Sixth Circuit addressed whether a non-
party witness may testify at deposition and then later invoke the Fifth
Amendment privilege against self-incrimination at a trial regarding the same
subject matter in the same litigation.5 Writing for the majority, Circuit Judges
Richard Allen Griffin and Amul Thapar, though disagreeing on the reasoning,
held that a witness testifying at a deposition does not waive the witness's right
to invoke the Fifth Amendment privilege against self-incrimination at a later
trial in the same civil case.6 This holding is inconsistent with the overall purpose
of a trial-to promote fact-finding and truth seeking. Allowing a witness to
pick and choose what aspects of a particular subject to discuss, by allowing a
witness to testify in a deposition but then later invoke the privilege against self-
incrimination in the corresponding trial, inevitably cast[s] doubt on the
trustworthiness of the statements and diminish[es] the integrity of the factual
* Heather Van Hull is a J.D. candidate at The Ohio State University Moritz College of
Law and writes for THE OHIO STATE LAW JOURNAL Sixth Circuit Review.
' The self-incrimination clause of the Fifth Amendment to the U.S. Constitution states,
No person ... shall be compelled in any criminal case to be a witness against himself. U.S.
CONST. amend. V.
2 Walters v. Dale (In re Flint Water Cases), 53 F.4th 176, 192 (6th Cir. 2022).
3 See generally Michael S. Green, The Privilege's Last Stand: The Privilege Against
Self-Incrimination and the Right to Rebel Against the State, 65 BROOK. L. REv. 627 (1999).
4 See id. at 636.
5 Walters, 53 F.4th at 192.
6Id. at 184; id. at 211, 213 (Thapar, J., concurring).
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