The Fifth Amendment of the United States Constitution’s Self Incrimination Clause provides that, “[n]o person shall . . . be compelled in any criminal case to be a witness against himself. . . .” This right protects an individual from “answer[ing] official questions put to him in any  proceeding . . . where the answers might incriminate him in future criminal proceedings.” While the drafters of the Constitution only included language related to criminal cases, the Supreme Court has extended the privilege to civil proceedings, including bankruptcy cases. However, this privilege is not absolute, and can be waived by the person seeking to assert it. A waiver can occur in two ways. First, by failing to assert the privilege in a timely fashion. Second, by consenting to provide the privileged information.
This memorandum explores the circumstances surrounding Fifth Amendment waivers in United States courts, such as the bankruptcy courts. Part I examines how long a person has to assert their Fifth Amendment right before it is considered waived. Part II describes what actions an individual can take within that timeframe that would affirmatively waive the privilege. If either form of waiver occurs, a witness will be required to turn over incriminating information.