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 §621-18 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §53; am L 1927, c 164, §1; am L 1971, c 151, §1; am L 1972, c 104, §1(m)), which provided in part: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).