Everybody’s Taking the Fifth These Days … Can My Client (in a civil case) Do So as Well?

FIFTH AMENDMENT “No person . . . shall be compelled in any criminal case to be a witness against himself.”

HISTORY OF FIFTH AMENDMENT RIGHT The right was created in reaction to the excesses of the Courts of Star Chamber and High Commission – British courts of equity that operated from 1487-1641. These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning that prosecutors did not bear the burden of proving a case, but that sufficient “proof” came from browbeating confessions out of the accused.

SCOPE OF PRIVILEGE “The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486-487 (1951) “[t]ruthful 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.” Ohio v. Reiner, 532 U.S. 17, 21 (2001)

FIFTH AMENDMENT IN THE CONTEXT OF CIVIL LITIGATION The fact that Fifth Amendment privilege against self-incrimination is raised in a civil proceeding rather than criminal prosecution does not deprive party of its protection. Under both the federal rules of discovery and the Constitution, civil litigants are under no obligation to disclose information that they reasonably believe might be used against them as an accused in a criminal prosecution. If a party reasonably apprehends risk of self-incrimination, he may claim Fifth Amendment privilege though no criminal charges are pending against him and even if the risk of prosecution is remote.

PROBLEMS WITH FIFTH AMENDMENT IN CIVIL CASES Doesn’t prevent adversaries from finding the same evidence elsewhere. (The right against self-incrimination is a personal privilege that does not extend to a corporation or its records). Although in a criminal proceeding, the court must instruct the jury that it cannot draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case, in civil cases, the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.

ASSERTING THE FIFTH A blanket assertion of the privilege is insufficient to relieve a party of the duty to respond to questions put to him. “Even if the danger of self-incrimination is great, the party’s remedy is not to voice a blanket refusal to produce his records or testify. Instead, he must present himself with his records for questioning, and as to each question and each record elect to raise or not to raise the defense.” Securities and Exchange Commission v. First Financial Group of Texas, Inc., 659 F.2d 660 (5th Cir. 1981).

WHO CAN ASSERT The right against self-incrimination is a personal privilege that does not extend to a corporation or its records. Bellis v. United States, 417 U.S. 85, 89-91 (1974). Further, a corporate record custodian may not resist a subpoena on the grounds that the contents of the documents would be personally incriminating. There remains an open question where the “custodian” is also the sole employee and officer of the corporation. Braswell v. United States, 487 U.S. 99, 110 (1988).

WAIVER OF PRIVILEGE Where criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details. Rogers v. U.S, 340 U.S. 367 (1951)

STAY OF CIVIL PROCEEDING the extent to which the issues in the criminal case overlap with those presented in the civil case; the status of the criminal case, including whether the defendants have been indicted; the private interests of the plaintiffs in proceeding expeditiously, weighed against the prejudice to plaintiffs caused by the delay; the private interests of and burden on the defendants; the interests of the courts; and the public interest

ETHICAL CONSIDERATIONS Rule 4.3 Dealing with unrepresented person In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

PARTY TO THE LITIGATION AND THE ADVERSE INFERENCE Parties District courts have wide discretion to admit a party’s invocation of the Fifth Amendment into evidence or to exclude the invocation as unfairly prejudicial under Fed. R. Evid. 403. Farace v. Independent Fire Ins. Co., 699 F2d 204, 210 (5th Cir. 1983). The invocation of the Fifth Amendment is not without consequences. The trier of fact and the opposing party are handicapped by the denial of possibly relevant information. To compensate for this handicap, courts have imposed a cost on the claimant to facilitate the proceeding or to “level the playing field’ for the party opposing the claimant.

The Supreme Court has said that an adverse inference is not forbidden against a party who invokes the Fifth. Factors: The Court weighs whether the relevance is outweighed by unfair prejudice under FRE 403. The inference must be corroborated by independent evidence. The need for the evidence must be substantial with no less burdensome way to obtain it. Any inference is limited to the scope of the specific question. Baxter v. Palmigiano, 425 U.S. 305 (1976)

NON-PARTY WITNESS & THE ADVERSE INFERENCE The overarching concern is that the adverse inference is trustworthy and will advance the search for the truth. Factors: The nature of the relevant relationships The degree of control of the party over the non-party witness Whether the interests of the party and the non-party witness are aligned The role of the non-party witness in the litigation LiButti v. United States, 107 F.3d 110 (2nd Cir. 1997)

Non-Party Witnesses A non-party's silence in a civil proceeding implicates Fifth Amendment concerns to an even lesser degree than it does as to parties to a lawsuit. RAD Servs., Inc. v. Aetna Casualty & Sur. Co., 808 F.2d 271, 275 (3d Cir.1986) (citing Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 521 (8th Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984)). Because there is no constitutional bar to the admission of this evidence, it is admissible if it is relevant and not otherwise prohibited by the rules. Fed.R.Evid. 402. F.D.I.C. v. Fid. & Deposit Co. of Maryland, 45 F.3d 969, 977 (5th Cir. 1995)