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ABA Section of Business Law


ABA Section of Business Law
Business Law Today
May / June 2000


Taking the 5th
How to pierce the testamonial shield

By NANCY C. WEAR

A party is being deposed. Then, a familiar phrase is heard: "I’m taking the Fifth." "On counsel’s advice, I invoke my right under the Fifth Amendment not to answer, on the grounds I may incriminate myself."

Regardless of the formula used to assert it, or the formality of the terms actually used, a lawyer who hears these words while attempting to obtain necessary discovery in a commercial case is likely to feel that the witness is unfairly using this right to cut off a litigant’s need to discover evidence.

Depending on the importance of the witness, such a deprivation can seriously undermine a party’s ability to prove its case. Yet anticipating and preparing for invocation of the Fifth Amendment may enable the lawyer to avoid a stalemate, or even use the claim of privilege in a way that advances the client’s case.

In counseling the individual who considers invoking the privilege, it is important for counsel to understand the limitations of the privilege, and the prerequisites for its invocation, in order to properly advise the client who considers relying on its protection. The client should be cautioned not to assume that the Fifth Amendment is a "magic phrase," automatically protecting the witness or party from all possible adverse consequences.

A review of some relevant principles will reveal how a lawyer can lessen the effect of a witness’ assertion of this privilege, while alerting the lawyer who is counseling an individual who considers taking the Fifth to the hazards that may be involved in taking such a course.

The goal here is to provide some guidance to civil lawyers on the subject. Attention is also given to the obstacles that are placed in the path of defense counsel when a civil plaintiff invokes the privilege, with suggestions for surmounting them.

The Fifth Amendment to the Constitution actually says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(Emphasis added.) Because the privilege "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory," Kastigar v. United States, 406 U.S. 441, 445 (1972), the lawyer who has not navigated these particular legal waters before — and this may include most of those practicing in the civil arena — may fear (or trust) that the very invocation of the privilege will foreclose all further questioning, on any subject.

Preparation for invocation of the privilege does not need to end the deposition, or mean that the witness is of no value to your case. Deposing counsel who has anticipated the possible invocation of the Fifth Amendment should be prepared, at the first utterance, to start certain inquiries, the responses to which will either cause the deponent to decide to answer substantive questions, or lay the groundwork for later helpful use of the transcript.

 

Will the answer "incriminate" or just embarrass? In the first place, it is important to determine whether the witness is in any actual danger of incriminating himself or herself. Despite the apparent frequency of prosecutions for matters that were formerly the subject of private lawsuits (such as money laundering, mail fraud, wire fraud and racketeering), there is still a substantial difference between a criminal case and a civil one.

While it is undoubtedly true that some misconduct can serve as a basis for both a civil lawsuit and a criminal prosecution, fraud is not necessarily theft, and not all contract disputes resolve themselves into accusations of criminal wrongdoing. Thus, while there may be subjective reasons why a witness will believe that some prior actions or words were morally or legally wrong, and he or she does not, therefore, wish to testify about them, the test for "incriminating" is an objective one.

However, this is a question that can be hard to answer while the litigation is in progress. Not surprisingly, case law on this subject focuses on the standard to be applied after the fact, when a court is asked to review the lawyer’s questions and the deponent’s responses:

The determination of what answers may incriminate or tend to incriminate cannot be left solely up to the witness but is a matter which requires the exercise of the sound discretion of the trial court under all the circumstances of the case.

 

State ex rel. Mitchell v. Kelly, 71 So. 2d 887 (Fla. 1954) (emphasis added), quoted in DeLisi v. Smith, 623 So. 2d 934, 938 (Fla. 2d DCA 1982), rev. denied, 434 So. 2d 887 (Fla. 1983).

Trusting in the court’s discretion is fine in principle, but at a deposition, there will rarely be a judge on hand to exercise that discretion, leaving the litigants to some future remedy such as a motion to compel, followed by judicial review if the result of the motion is adverse. Both options are expensive and time consuming, whereas knowing in advance the parameters of the privilege and making preparations for its invocation can ameliorate negative effects on the case.

 

Danger of self-incrimination is easy to determine in a criminal case. If the invocation is made during a criminal investigation or as part of an interview of a witness in a criminal matter, an accurate assessment of the witness’ exposure to criminal penalties as the result of the witness’ own testimony is likely to be relatively easy.

For one thing, a prosecutor who is in the room hearing the admissions is already predisposed to follow up on any inculpatory statements. As well, it is increasingly common that, even if the state does not want to prosecute, the federal authorities may wish to proceed against a given individual. In either case, the invocation of the Fifth Amendment is understandable.

 

Civil cases are different. In civil actions, however, there is no prosecutor on hand. The issue then shifts to whether "the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination." Marchetti v. United States , 390 U.S. 39, 453, 88 S. Ct.. 697, 705, 19 L. Ed. 2d 889 (1968). Because the privilege against self-incrimination applies only in "instances where the witness has reasonable cause to apprehend danger" of criminal liability, the deposing lawyer should assess in advance, in light of what counsel knows about the case, whether the witness has a realistic basis for such a fear. Hoffman v. United States, 341 U.S. 479, 486, (1951), quoted in U.S. v. Argomaniz, 925 F. 2d 1349 (11th Cir. 1991).

Here is an illustration of how counsel, by preparing appropriately for a witness’ anticipated invocation of Fifth Amendment privilege, can turn this circumstance to the client’s advantage, as was done in a recent South Florida commercial fraud case seeking more than a half million dollars in damages.

First, counsel was aware that, throughout more than two years of litigation, the plaintiff corporation — the "victim" — had not been contacted by any state or federal prosecuting authority or investigative agency, such as the FBI, a state agency, a sheriff’s office, or a local police department, relative to any present or proposed criminal investigation. As well, due to the publication of several newspaper articles about the case in the local area, the law firm and the client had both been contacted by local media and by several persons who had read the resulting stories.

In light of these facts, representations could confidently be made to the witness (and his counsel, if any) that no criminal case was in progress or under consideration by any prosecuting entity. Thus, any expressed fear of self-incrimination could be shown to be baseless because there was no realistic expectation that the witness’ testimony would be used against him.

Counsel did not stop there. When, as expected, the witness did invoke the privilege, he was carefully informed about the nonexistence of any pending prosecution, and a record was made showing that he himself had not been contacted by any investigators. The record also set forth the witness’ lack of any credible information that would support his "fear." In a belt-and-suspenders approach, when it dawned on the witness that his mere invocation of the Fifth Amendment privilege did not immediately bring the deposition to an end, the witness was also afforded an opportunity to contact his lawyer by telephone (the lawyer, although noticed, had opted not to accompany his client to the deposition).

But that’s not all. By means of careful questioning, counsel established that the witness insisted on invoking the Fifth Amendment even in response to the most innocuous questions about his education and employment background. The witness varied the invocation by asserting a "right" to consult counsel prior to being "interrogated" in the deposition, and he also claimed that he intended to consult "a criminal [defense] lawyer" for advice.

At the end of the session, the record developed clearly demonstrated:

• the nonexistence of any pending criminal proceeding,

• the absence of any facts that could reasonably support the witness’ fear of criminal prosecution,

• the witness’ refusal to answer any questions, regardless of how neutral or nonincriminating, and

• the witness’ consultation with his lawyer.

When the witness was called to testify before the jury at trial, counsel was able to use the transcript to excellent effect, undermining the witness’ credibility with the jury by impeaching him with his earlier invocation of the Fifth Amendment.

From the perspective of counsel who is advising a client on this issue, consideration of the foregoing points should be considered well in advance of the deposition, in order to assure the client that he or she is on solid legal ground, or to develop another defensive strategy.

 

Moving to compel: the movant’s burden. The companion issue to the situation where the witness refuses to answer all questions put to him or her arises where, after the witness has invoked the privilege, and the deposing lawyer has moved to compel, the trial court has then ordered the deponent to answer all questions put in the deposition. On review, the courts have crafted a narrower rule, as in J.R. Brooks & Son Inc. v. Donovan , 592 Sol. 2d 795, 796 (Fla. 3d DCA 1992). In that case, nonparty deponents invoked the privilege, and the trial judge granted the ensuing motion to compel as to every question. The appellate court said that the order was "overbroad," "infringe[d] upon the deponents’ Fifth Amendment right," and would be quashed and remanded "so that the trial court may consider whether each question properly falls within the purview of the Fifth Amendment." Id. at 796 (emphasis added).

That this pitfall may be avoided by preparing groups of questions was illustrated in Magid v. Winter , 654 So. 2d 1037 (Fla. 4th DCA 1995), an opinion that provides substantial guidance in how to proceed in this delicate area. Because Magid himself would have provided the final "link in the chain of evidence needed to prove a crime against him" if he had answered the pending question (did you forge the name of your brother on the questioned promissory note?), it was plain that he could invoke the Fifth Amendment privilege. Id. at 1038. All that remained for a criminal prosecution — if he admitted forging the document — was delivery of the transcript to the local prosecutor.

But in reaching the same result as in J.R. Brooks & Sons, the Magid court emphasized that the trial court did need to sort from the mix of questions those as to which the defendant-witness could rightfully invoke the privilege, and to require answers "where it is perfectly clear that the witness is mistaken as to his apprehensions." Id. at 1039. A determination of the propriety of the person’s apprehension of incrimination must be made on a question-by-question basis.

With those rulings in mind, counsel strengthens the position at a motion to compel by showing that the questions were crafted in such a way that each question or series of questions is capable of being ruled on separately.

 

Obtaining discovery from a plaintiff who takes the Fifth. The foregoing guidelines were formulated in cases where the person invoking the privilege was the defendant or a nonparty witness. If the one invoking Fifth Amendment protection is a plaintiff, what happens to the equally compelling due process rights of the defendant?

A striking example of this conflict arose in the Fifth Circuit in Wehling v. Columbia Broadcasting System , 608 F. 2d 1084 (5th Cir. 1980), reh. denied 611 F. 2d 1026. Carl Wehling, the subject of a CBS news story purporting to expose his school loan-fraud scheme, sued CBS for libel. But when Wehling invoked the Fifth Amendment in order to avoid answering deposition questions aimed at revealing that the exposé was true, the district court ordered Wehling to answer, or face dismissal of the lawsuit.

Because it was undisputed that Wehling was also the target of a continuing federal grand jury investigation, the appellate court sought a middle ground between CBS’ right to defend the lawsuit, and Wehling’s Fifth Amendment right. Recognizing the equities on both sides, the court refused to force Wehling "to choose between his silence and his lawsuit," and ordered a stay of further discovery "until the applicable [criminal] statute of limitations has run" in three years’ time. Id. at 1089.

Recognizing that there was a risk that the passage of time would erode CBS’ ability to conduct discovery, the circuit court invited the district court to revisit the issue as necessary, but cautioned that "prejudice to defendant [CBS] must be established before any remedies are appropriate." In its opinion that denied CBS’ motion for rehearing, however, the court did not provide much comfort to Wehling: The court agreed that CBS was free to go to trial without obtaining a deposition from Wehling, and that such a tactic could hoist Wehling on his own petard, because such a Fifth Amendment invocation at trial "would be subject to the drawing of an adverse inference by the trier of fact." Wehling v. CBS, on rehearing, 611 F. 2d 1026 (5th Cir. 1980).

The Wehling case is frequently cited for the proposition that a stay of discovery will "always" be granted, and that the interests of the one who invokes the Fifth Amendment will "inevitably" prevail. But cases following Wehling make more of the point that the defending party whose discovery efforts have been frustrated by invocation of the Fifth Amendment will inevitably move to a more advantageous position with the passage of time.

A later case from the Federal Circuit, in fact, described the Wehling result as just one of three possible outcomes that may follow when the Fifth Amendment has been invoked. The first rule, according to Afro-Lecon Inc. v. U.S., 820 F. 2d 1198 (Fed. Cir. 1987), requires that one who pursues judicial relief waives the privilege, the position argued by CBS in Wehling and the government in Afro-Lecon, and rejected in both cases. The second result "balances the need for discovery against the need for secrecy," while the third theory "denies the plaintiff the privilege if he places the matter subject to the privilege in issue and the information is vital to the defendant’s case." Afro-Lecon Inc. v. U.S., at 1204-5.

While remanding for the agency below to reconsider whether a stay was appropriate on the facts of the particular case, the Afro-Lecon court agreed with the Fifth Circuit in Wehling, that a stay pending resolution of any criminal proceedings would be seen as a temporary solution at most, and would require the trial court to remain available to revisit the issue if the criminal case is resolved, or if discovery options to the defendant are in danger of evaporating.

Florida courts have followed the Wehling rationale at least since Village Inn Restaurant v. Aridi , 543 So. 2d 778 (Fla. 1st DCA 1989), cited Wehling as authority opposed to outright dismissal of a plaintiff’s case on invocation of the Fifth Amendment. Aridi, a workers’ compensation claimant/plaintiff, had refused to testify about income from work during a period when he was supposedly injured and eligible for worker’s compensation payments, and had invoked the Fifth Amendment on those questions.

The employer-carrier then proffered testimony from a former IRS investigator who had examined documents indicating that the claimant did have work-related income during that time. On appeal, the court acknowledged Aridi’s right to invoke the self-incrimination privilege, but found that the trial court had gone too far in refusing to consider the proffer of evidence from the former IRS investigator that would have proved the same facts the claimant refused to testify about.

The court decried the plaintiff’s attempt to use the privilege as a "sword," to escape all consequences, and directed the trial court to consider the proffered evidence. Id. at 782. In this regard, the Village Inn case demonstrates more directly than Wehling the courts’ growing reluctance to allow a civil litigant to use the courts in a way that seems to belie the adage "crime does not pay."

 

Wehling, Village Inn and cases like them serve to alert the attentive lawyer to the fact that, while a plaintiff who invokes the Fifth Amendment may not face immediate dismissal, the courts are increasingly inclined to limit the time during which a case can be kept viable if the plaintiff is obstructing discovery, despite the undoubted judicial respect accorded to invocation of the Fifth Amendment.

Such an approach appears to have the imprimatur of the Supreme Court, which summarily dismissed a case that had been kept alive by the District of Columbia circuit under the Wehling analysis. In that suit, brought by Black Panther Party co-founder Huey Newton, Newton invoked the Fifth Amendment to avoid questions about criminal activity undertaken by him and the Black Panther Party. Those questions were posed to him by the defendants, who were all high-ranking appointees in the Nixon administration, including Attorney General William French Smith, in the course of defending accusations that these officials had conspired to destroy the Black Panther Party.

The district court dismissed the case, holding Newton to the choice between the Fifth Amendment and the lawsuit, but the circuit panel, in a lengthy opinion, reversed, Black Panther Party v. Smith, 661 F. 2d 1243 (D.C. Cir. 1981), relying in large part on Wehling. In one paragraph, the Supreme Court granted certiorari, vacated the judgment of the court of appeals, and remanded with instructions to dismiss the case. Smith v. Black Panther Party, et al. , 458 U.S. 118 (memorandum decision). The memorandum decision is cited in Afro-Lecon Inc. v. U.S., supra, where the court refused to accept the Smith holding as binding precedent, correctly noting that the one-paragraph decision included no definitive outline of the court’s analysis.

It is a fair inference that while the court, "in its brief order vacating the decision in Black Panther, provided no indication of which of the various holdings by the court of appeals was incorrect," the result bodes well for a defendant who, under a strict Wehling analysis, would be substantially deprived of a defense against a plaintiff who is willing to use the privilege as a way to avoid discovery, deposition testimony or dismissal. Afro-Lecon Inc. v. U.S., 820 F. 2d 1198, 1201 (Fed. Cir. 1987).

The lawyer who understands the limits on the Fifth Amendment’s use by a witness or a party opponent is well equipped to limit the harm such an invocation can do in a particular case. Also, the lawyer may be able to neutralize its effects or attain a significant benefit before a jury as the result of careful preparation and deft questioning, and will be well prepared to offer correct and complete advice to a client considering use of the Fifth Amendment’s testimonial protection.

 

Wear is an associate with Patrick C. Barthet, P.A., in Miami.


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