This defense is available in both civil and criminal litigation. Heaton Hospital, Inc. v. Emrick, 128 Vt. 405, 264 A.2d 806 (1970); Childs v. Merrill, 66 Vt. 302, 306 (1894). However, it is not a blanket justification for refusing to testify.
The privilege against self-incrimination allows a witness to refuse to testify where the testimony could be used as evidence in subsequent prosecutions. Heaton Hosp., Inc. v. Emrick, 128 Vt. 405, 407, 264 A.2d 806, 808 (1970). Once the threat of prosecution has been removed or the proceedings have been resolved, however, compelling a witness to disclose information concerning the resolved proceedings does not violate the self-incrimination privilege.
It is plaintiff's burden to show by clear and convincing evidence that the challenged statute is unconstitutional. Heaton Hosp., Inc. v. Emrick, 128 Vt. 405, 408-09, 264 A.2d 806, 809 (1970); State v. Auclair, 110 Vt. 147, 156, 4 A.2d 107, 111 (1939). In order to sustain his argument, plaintiff must overcome a presumption in favor of the honesty and integrity of the panel members.
No evidence relating to this claim was offered at the hearing. Since the Commissioner had no fair opportunity to pass judgment on this question, it is not a matter for review. Heaton Hospital, Inc. v. Emrick, 128 Vt. 405, 264 A.2d 806 (1970); Kinney v. Cloutier, 125 Vt. 109, 211 A.2d 246 (1965). Appellants' request, informally set forth in their brief for leave to present additional evidence before the Commissioner, does not meet the requirements of 3 V.S.A. ยง 815(b).
This point was not made or urged in the trial court. Having been made for the first time in this Court, it is not appropriate for this Court to pass upon it. Heaton Hospital, Inc. v. Emrick and State, 128 Vt. 405, 408, 264 A.2d 806 (1970). Judgment affirmed.