What is the test for a witness to waive their Fifth Amendment privilege?

A court should only infer such a waiver from a witness' prior statements if (1) the witness' prior statements have created a significant likelihood that the finder of fact will be left with and prone to rely on a distorted view of the truth, and (2) the witness had reason to know that his prior statements would be interpreted as a waiver of the Fifth Amendment's privilege against self-incrimination ( Klein v. Harris, supra ). As to the first prong of the test for a testimonial waiver, courts consider whether the witness' prior testimony has created a significant danger of distortion ( Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 [1951] ). The requisite reason to know that a waiver might be inferred should be found only if the witness' prior statements were (a) "testimonial," meaning that they were voluntarily made under oath in the context of the same judicial proceeding, and (b) "incriminating," meaning that they did not merely deal with matters "collateral" to the events surrounding commission of the crime, but directly inculpated the witness on the charges at issue (id ) (internal citations omitted) ( Klein v. Harris, 667 F.2d at 288). Thus, where a witness has made statements that were both "testimonial" and "incriminating," he has made statements

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that, by virtue of their "testimonial" nature, will likely influence the finder of fact, and that, by virtue of their "incriminating" nature, contain information that the witness was privileged not to reveal ( id ).

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