Dept of Human Services v. F.T.R.

"Barring exceptional circumstances, the requirement for a question-by-question invocation is necessary for the court to determine whether the privilege applies, by evaluating whether 'the answer to that particular question would subject the witness to a real danger of * * * crimination[,]' as opposed to 'a mere imaginary possibility of increasing the danger of prosecution.'" State v. Rodriguez, 301 Or App 404, 412 (2019) (quoting Rogers v. United States, 340 U.S. 367, 374-75 (1951))

The juvenile court took jurisdiction over Mother’s children. Mother also faced criminal neglect charges in a parallel case. In a review hearing, the court ordered Mother to undergo a psychological examination. On appeal, Mother argued that the court erred in not granting use immunity because the examination could result in self-incriminating statements. DHS argued that use immunity is unneeded because the examination did not have the purpose of eliciting incriminating statements. The Oregon and federal constitutions protect the right against self-incrimination. Or. Const. art. 1, § 12; U.S. Const. amend. V. Although the right is applicable in both criminal and civil proceedings, it is not immunity from testifying altogether. See State v. Rodriguez, 301 Or App 404, 412 (2019). "Barring exceptional circumstances, the requirement for a question-by-question invocation is necessary for the court to determine whether the privilege applies, by evaluating whether 'the answer to that particular question would subject the witness to a real danger of * * * crimination[,]' as opposed to 'a mere imaginary possibility of increasing the danger of prosecution.'" State v. Rodriguez, 301 Or App 404, 412 (2019) (quoting Rogers v. United States, 340 U.S. 367, 374-75 (1951)).  In Dept of Human Services v. K.R.L., 235 Or App 1, 5 (2010), an order requiring a polygraph where Mother must answer "whether she injured the child or knew who did” called for use immunity. Nevertheless, the Court of Appeals found that Mother's psychological examination did not call for use immunity like the polygraph in K.R.L. because here DHS required no specific questioning of criminal conduct. Therefore, the Court held that the juvenile court did not err in ordering a physiological examination without use immunity. Affirmed.