Ohio v. Reiner, 532 U.S. 17, 5 (2001) (per curiam)

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Cite as: 532 U. S. 17 (2001)

Per Curiam

implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Id., at 486-487.

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


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