Rule 509  Privilege against
self-incrimination.  To the extent that such privilege exists under the
Constitution of the United States or the State of Hawaii, a person has a
privilege to refuse to disclose any matter that may tend to incriminate the
person. [L 1980, c 164, pt of §1; gen ch 1985]



 



RULE 509 COMMENTARY



 



  This rule is similar to Cal. Evid. Code §940.  It
derives directly from the constitutional privilege against self-incrimination
assured by the Fifth Amendment to the U.S. Constitution and by Article I,
Section 10, of the Constitution of the State of Hawaii.  It was also
incorporated in a prior statute, Hawaii Rev. Stat. §621-18 (1976) (repealed
1980) (originally enacted as L 1876, c 32, §53; am L 1927, c 164, §1; am L
1971, c 151, §1; am L 1972, c 104, §1(m)), which provided in part:



Nothing herein
shall render any person who in any criminal proceeding is charged with the
commission of any indictable offense, or any offense punishable on summary
conviction, compellable to be a witness against himself; or, except as
otherwise provided, shall render any person compellable to answer any question
tending to incriminate himself....



  In a landmark case nearly a century ago, Counselman v.
Hitchcock, 142 U.S. 547, 563 (1892), the U.S. Supreme Court concluded that the
privilege against self-incrimination extended not only to the accused in a
criminal case but also to witnesses generally:  "The object [of the
privilege] was to insure that a person should not be compelled, when acting as
a witness in any investigation, to give testimony which might tend to show that
he himself had committed a crime.  The privilege is limited to criminal
matters, but is as broad as the mischief against which it seeks to
guard."  See Griffin v. California, 380 U.S. 609 (1965); Malloy v. Hogan,
378 U.S. 1 (1964) (Fifth Amendment privilege applicable to states); State v.
Santiago, 53 H. 254, 492 P.2d 657 (1971).



  This privilege may be lost in only two ways.  The first is
through voluntary disclosure by the holder of the privilege, see Rule 511
infra.  The second is through a grant of immunity, as provided for by statute,
see Hawaii Rev. Stat. ch. 621C (Supp. 1979); Kastigar v. United States, 406
U.S. 441 (1972).