Using the defendant’s shield as your sword
The right against self-incrimination is said to derive in part from the trial of Puritan political Leveller, John Lilburne (aka Freeborn John), in 17th century England. Puritans were often tortured into confessing their religious affiliation and were considered guilty if they remained silent.
In Lilburne’s trial, he refused to take the oath ex officio (swearing to tell the truth before being questioned) and as a result he was pilloried and whipped. English law granted its citizens the right against self-incrimination after this event when a revolution established greater parliamentary power.
Puritans who fled religious persecution brought this idea with them to America, where it would eventually become codified in the Bill of Rights. Today, courts have found the right against self-incrimination to include testimonial or communicative evidence at police interrogations and legal proceedings.
Naturally, this creates certain ramifications when the Fifth is pled in civil litigation.
The insertion of the Fifth Amendment into civil cases is frequently seen in the context of tort actions where there is a companion criminal case and the defendant is trying to avoid prosecution for drunk driving, street racing, battery, physical and/or financial elder abuse or fraud.
The Constitutional right
The Fifth Amendment states in part, that “No person. . . shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has long held the privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise those which could furnish a link in the chain of evidence needed to prosecute the claimant for a crime. (Hoffman v. United States (1951) 341 U.S. 479, 486-487) The Supreme Court has held that similar language contained in the Fifth Amendment to the Federal Constitution is extended, by virtue of the 14th Amendment, to action by the states, and that federal standards respecting the privilege against self-incrimination therefore govern state proceedings. (Application of Gault (1967); 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); Zonver v. Sup.Ct. (Zonver) (1969) 270 Cal.App.2d 613, 620-621, [holding that Any party or witness in a discovery proceeding may claim the 5th Amendment privilege against disclosure of information that might tend to incriminate him or her under either federal or state law.])
The privilege doesn’t prevent prosecutors (or adversaries in civil litigation) from finding the same evidence elsewhere. “A party is privileged from producing the evidence, but not from its production.” (Johnson v. United States (1913) 228 U.S. 457.) Given this fact, the prudent move is to assert the privilege as broadly as possible in order to eliminate an avenue to discover the incriminating information from another source. The invocation of the right is understandable, given gravely more severe consequences rendered through the criminal prosecution. Defense counsel is wise to recall:
Much talking is the cause of danger. Silence is the means of avoiding misfortune. The talkative parrot is shut up in a cage. Other birds, without speech, fly freely about. (Saskya Pandita)
When this occurs in a civil case, the Plaintiff’s lawyer sometimes thinks:
Nothing is more useful than silence. (Menander (342 BC - 292 BC)
Invoking the right
The party or witness who wishes to invoke the right must assert the privilege as to particular questions asked or other evidence sought. A blanket refusal to appear or testify is not sufficient. (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045.) Any delay or failure to assert the privilege may result in waiver thereof. This applies to responses to interrogatories, requests for admissions, document productions, and depositions. (See, e.g., Brown v. Sup.Ct. (Boorstin) (1986) 180 Cal.App.3d 701, 712 in which Plaintiff served interrogatories inquiring about matters for which Defendant was facing criminal charges. Defendant failed to respond within the time permitted. His later attempts to avoid discovery by claiming self-incrimination were unavailing. The court held “Defendants had ample opportunity to timely raise their Fifth Amendment objection and failed to do so, thereby waiving their privilege.”
This means that when an opposing party asserts their client’s right against self-incrimination, you need to make a record by forcing them to dig as deep a hole as you can. Ask as many specific questions as possible to prompt the assertion of the privilege. That way, you can provide the court with ample information to examine the application of the asserted privilege and you are making a thorough record on every issue upon which you will later be seeking an adverse inference. The more times the privilege is raised, the more ability you will have to use it against the defendant.
When making your motion to compel answers, the burden is on the objector to show that the testimony or other evidence could tend to incriminate him or her. (Warford v. Medeiros, supra, 160 Cal.App.3d at 1045, Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1151-1152.) The court must make a “particularized inquiry” as to whether the claimant has met such burden with respect to each claim of privilege. It must make findings on the record as to whether the privilege claimed is valid as to each question or document. (Ibid.)
Inference to be drawn
While in a criminal procedure, 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, (Griffin v. California (1965) 80 U.S. 609). 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.” (Baxter v. Palmigiano (1976) 425 U.S. 308, 318.)
Under Baxter, an opposing party can’t simply point to the silence and claim victory in their civil case. A court is entitled to draw adverse inferences against the party who “pleads the Fifth.” As Justice Brandeis said, “Silence is often evidence of the most persuasive character.” (United States ex rel. Bilokumsky v. Tod (1923) 263 U.S. 149, 153-154.)
The courts of California have held the same. A party claiming a privilege to avoid disclosing facts essential to a claim or defense may be barred from asserting that claim or defense at trial. (Steiny & Co., Inc. v. California Elec. Supply Co. (2000) 79 Cal.App.4th 285, 292, 93 – by invoking trade secrets privilege to avoid disclosing proprietary information relevant to its damage calculations, plaintiff was barred from proceeding with damages claims; Fremont Indem. Co. v. Sup.Ct. (Sharif) (1982) 137 Cal.App.3d 554, 560, – court could order dismissal of suit against fire insurance company where plaintiff invoked 5th Amendment privilege to preclude questioning as to whether he committed arson and started the fire.)
Whereas the privilege may be invoked by a civil litigant. (Segretti v. State Bar (1976) 15 Cal.3d 878, 126 Cal.Rptr. 793; Alvarez v. Sanchez (1984) 158 Cal.App.3d 709.) It does not provide for protection against civil penalties, and in a civil case, a witness or party may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it. (Blackburn v. Superior Court, (1993) 21 Cal.App.4th 414.)
Where a trial court is faced with a case involving a civil defendant who faces possible criminal prosecution involving the same facts as the civil action, accommodation of the various interests is sometimes made to the civil defendant although it is done from the standpoint of fairness, not from any constitutional right. Courts recognize the dilemma faced by a defendant who must choose between defending the civil litigation by providing testimony that may be incriminating on the one hand and losing the case by asserting the constitutional right and remaining silent on the other hand. At the same time, courts must also consider the interests of the plaintiff in civil litigation where the defendant is exposed to parallel criminal prosecution and the interest of the courts in fairly and expeditiously disposing of civil cases. (Fuller v. Superior Court, (2001) 87 Cal.App.4th 299); Blackburn v. Superior Court, (1993) 21 Cal.App.4th 414, [discussing the conferring of immunity on the party invoking the privilege]; Pacers, Inc. v. Superior Court, (1984) 162 Cal.App.3d 686, Alvarez v. Sanchez, (1984) 158 Cal.App.3d 709.)
Plaintiffs are entitled to an expeditious and fair resolution of their civil and the court’s role is to safeguard against gamesmanship and to prevent delay. (Gov. Code, § 68607; Cal. Stds. Jud. Admin., § 2.1(h).) It would be manifestly unfair to plaintiffs if a defendant was able to invoke the privilege against self-incrimination and later elect to waive that privilege and testify at trial about the same matters. “A litigant cannot be permitted to blow hot and cold in this manner. (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306 (citing A & M Records, Inc. v. Heilman, supra, 75 Cal.App.3d at p. 566) [“[T]he fact that a man is indicted cannot give him a blank check to block all civil litigation on the same or related underlying subject matter. Justice is meted out in both civil and criminal litigation . . . .” ]
Added to the mix, of course, is the interest of the courts in fairly and expeditiously disposing of civil cases, and in efficiently utilizing judicial resources”…. “However, courts are guided by the strong principle that any elapsed time other than that reasonably required for pleadings and discovery “is unacceptable and should be eliminated. Courts must control the pace of litigation, reduce delay, and maintain a current docket so as to enable the just, expeditious, and efficient resolution of cases.
(Fuller, supra, at 306-307.)
In Fuller, the issue concerned whether the deposition of several security guards accused of beating the plaintiffs could go forward. The defendants contended that the depositions should not go forward because the security guards faced potential criminal prosecution and requested the trial Court stay the civil proceedings. The Fuller Court disagreed, writing:
The depositions should proceed. If the security guards choose to invoke their right against self-incrimination with respect to particular questions, then they should do so at that time. This will provide the trial court with a clear record upon which to base a ruling about whether the constitutional privilege is implicated. Once that determination has been made, the trial court will be in a better position to exercise its discretion and fashion a procedural ruling that can accommodate the various interests of the parties and of the judicial system.
(Id., at pp. 309-10.)
A plaintiff may seek a protective order prior to trial to bar defendant from testifying to such matters when the case comes to trial. (Pacers, Inc. v. Sup.Ct. (Needham) (1984) 162 CA3d 686, 688-689, 208 CR 743, 745.) In Pacers, the appellate court reversed the trial court’s order barring defendant from testifying and staying the case until the criminal statute of limitation passed.
But preclusion of testimony is only one tool available to the trial court in fashioning a fair resolution for the competing interests involved (including plaintiff’s interests). To facilitate discovery, the court may grant the defendants immunity against use of their deposition answers or evidence derived from these answers in any criminal prosecution. (Fuller, supra, at 308-310; see also People v. Sup.Ct. (Kaufman) (1974) 12 Cal.3d 421, 428-429, – court in consumer fraud action could compel deposition after granting deponent immunity against criminal prosecution based on use of information disclosed in deposition or facts derived therefrom.)
Alternatively, the court may stay discovery until disposition of any pending criminal proceedings or until the statute of limitations has run on criminal prosecution, so that defendant can no longer claim a 5th Amendment privilege. (Pacers, Inc., supra, 162 Cal.App.3d at 689, 208 CR at 745-746 – depositions postponed for one year, at which time criminal prosecution would be barred. Such a stay is discretionary; defendant has no right to a blanket stay on 5th Amendment grounds. Klein v. Sup.Ct. (Thomas) (1988) 198 Cal.App.3d 894, 905, see Avant! Corp. v. Sup.Ct. (Nequist) (2000) 79 Cal.App.4th 876, 885.)
And a stay is not favored where the statute of limitations on criminal prosecution has years to run. (Fuller, supra, 87 Cal.App.4th at 309.)
To avoid a party testifying at trial on matters as to which it had previously asserted the privilege, the court may impose a pretrial deadline for any waiver of the privilege. The deadline should allow sufficient time for the opposing party to conduct depositions and other necessary discovery. (Fuller, supra, 87 Cal.App.4th at 310) However, the 5th Amendment privilege rarely extends to demands for documents or records voluntarily prepared (no “testimonial compulsion”), even if the contents are incriminatory – e.g., business records of a sole proprietor showing illegal transactions. (See United States v. Doe (1984) 465 US 605, 610, 104 S.Ct. 1237, 1241.)
Yet, the privilege may apply where production of the documents would itself be “testimonial” and incriminatory – e.g., where by producing the documents sought, a party would effectively admit their existence and authenticate them as his or hers, thus supplying a link in the chain of evidence needed for prosecution. (Ibid.)
When the records are required by law, there is no 5th Amendment protection when sought by a regulatory agency responsible for enforcing that law. (E.g., Lab.C. § 1174 requires employers to maintain wage and hour records for inspection by Labor Commission.). The State’s need to verify compliance with valid police power regulations outweighs concerns re implicating the records-keeper in criminal conduct. (Craib v. Bulmash (1989) 49 Cal.3d 475, 489.) This results in a situation where State agencies can enforce their regulations by criminal prosecutions based wholly on compelled self-incrimination!
Protective Order to obtain immunity
The privilege against self-incrimination cannot be claimed if the witness is granted immunity against criminal prosecution based on use of the information disclosed. “Use immunity” is sufficient. The witness or party can still be prosecuted on the basis of information obtained from other sources. (People v. Sup.Ct. (Kaufman) (1974) 12 C3d 421, 428-429, 115 CR 812, 816-817.)
Therefore, the party seeking immunity should file a motion for protective order. A noticed motion is required. The moving papers must show:
- Defendant is being compelled to testify;
- The possibility of criminal prosecution is actual rather than speculative;
- The substance of each question is such that answering it could be incriminating; and
Notice has been given to the prosecuting authority.
(Blackburn v. Sup.Ct. (Kelso) (1993) 21 Cal.App.4th 414, 425.)
In addition to notice to all parties to the action, notice must be given to the appropriate prosecuting authority that a grant of immunity is being sought. (Daly v. Sup.Ct. (Duncan) (1977) 19 Cal.3d 132.) The notice must be sufficient to enable the prosecuting agency to make an informed judgment on whether to object to the immunity request. It must disclose the subject matter of the questions to which immunity is sought; and if it appears the statute of limitations has run on the crime, why the defendant still needs to be immunized. (Blackburn, supra, 21 Cal.App.4th at 432.) Defendant had to disclose why he believes statute of limitations may be tolled. If the prosecutor objects (by declaration that the proposed immunity might unduly hamper prosecution of a criminal proceeding), immunity must be denied as there is an irrefutable presumption that the prosecutor’s objection is not groundless. (Philibosian v. Sup.Ct. (Coalition Against Police Abuse) (1983) 149 Cal.App.3d 938, 941.)
The right against self-incrimination is a personal privilege that does not extend to a corporation or its records. Bellis v. United States 91 (1974) 417 U.S. 85, 89-held that a lawyer couldn’t withhold his law firm’s documents, even if those documents would tend to incriminate him. Further, a corporate record custodian may not resist a subpoena on the grounds that the contents of the documents would be personally incriminating. Although a sole proprietor may be able to claim the privilege (where the document production is “testimonial”), a corporation cannot because a corporation has no 5th Amendment privilege. (Braswell v. United States (1988) 487 US 99, 104, 108 S.Ct. 2284, 2288.)
Further, the custodians (officers, directors or shareholders) of corporate records hold them only in a representative capacity and may be compelled to produce them even if the records will personally incriminate such custodians. Because the custodian acts as a representative, the production is deemed by the corporation; hence, no 5th Amendment claim lies. (Braswell, supra, 487 US at 109-110, 108 S.Ct. at 2291.) He or she may be required by subpoena duces tecum to produce corporate records retained in his or her capacity as a corporate officer even though they might tend to be incriminating. (McPhaul v. U.S., 364 U.S. 372, 81 S. Ct. 138, 5 L. Ed. 2d 136 (1960).) The same rule applies to records of an unincorporated association where the impersonal character of the membership and activities make such organization representative of common group interests only rather than the personal and individual interests of each member. (U.S. v. White, 322 (1944) U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542, 152 A.L.R. 1202.)
However, California courts have held there is a clear distinction between the power to compel production of corporate records and the right to compel testimony from their custodian that would incriminate him or her. (Avant! Corp. v. Superior Court, (2000) 79 Cal.App.4th 876; McLain v. Superior Court in and for Sacramento County (3d Dist. 1950) 99 Cal.App.2d 109.)
Moreover, since a corporation has no 5th Amendment rights, it is not entitled to a stay of discovery. (Avant! Corp., supra, 79 Cal.App.4th at 886-887.) But if individual employees are joined as defendants and assert 5th Amendment rights, they may seek such a stay. (See Fuller, supra, 87 Cal.App.4th 299, 309.)
When armed with an understanding of the applicability of the Fifth Amendment in the right tort case, you can structure a discovery plan to potentially obtain a treasure trove of adverse inferences against the defendant, and endeavor to keep your case moving forward, instead of being stayed.
Tobin Ellis is a trial attorney with Banafsheh, Danesh & Javid. During his career he has tried personal injury and wrongful death cases resulting from automobile accidents, premises liability, construction and workplace accidents, product liability, medical malpractice and elder abuse. He is admitted to practice before all State Courts within California, the U.S. Federal District Courts for the Central, Eastern and Southern Districts of California, as well as the Northern District of Texas, the FederalDistrict Court of New Mexico, and the United States Supreme Court. He sits on the Board of Governors for CAALA and CAOC. He has been named a Top 100 Lawyer by The National Trial Lawyers.
by the author.
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