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Birmingham Bar Association Bulletin - Summer 2014

Civil Law Brent Grainger & Alexandra Shulman; Scott Dukes & Geisler P.C. An Overview of the Fifth Amendment and Adverse Inferences in Civil Cases 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 offense 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. The Federal Approach In Baxter v. Palmigiano, the Supreme Court held that, 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.”4 Thus, invoking the Fifth Amendment privilege in a civil case in federal court can be potentially damaging, and in some cases, fatal to the party’s claims or defenses. However, the adverse inference has its limits – it does not relieve the plaintiff ’s burden to offer probative evidence to prove his or her case.5 However, “t he plaintiff who retreats under the cloak of the Fifth Amendment cannot hope to gain an unequal advantage against the party he has chosen to sue. To hold otherwise would, in terms of the customary metaphor, enable plaintiff to use his Fifth Amendment shield as a sword.”6 Federal courts have taken the stance that “a non-party’s silence in a civil proceeding implicates Fifth Amendment concerns to an even lesser degree.”7 In LiButti v. United States, the Second Circuit articulated four non-exclusive factors that courts should consider in determining whether a non-party’s invocation of the Fifth Amendment and any resulting adverse inferences are appropriate: 1. The Nature of the Relevant Relationships – The closer the bond, whether by reason of blood, friendship or business, the less likely the non-party witness would be to render testimony in order to damage the relationship. 2. The Degree of Control of the Party Over the Non-Party Witness – The degree of control which the party has vested in the non-party witness in regard to the key facts and general subject matter of the litigation will likely inform the trial court whether the assertion of the privilege should be viewed as akin to testimony approaching admissibility under Fed. R. Evid. 801(d)(2), and may accordingly be viewed as a vicarious admission. 3. The Compatibility of the Interests of the Party and Non-Party Witness in the Outcome of the Litigation – The trial court should evaluate whether the assertion of the privilege advances the interests of both the non-party witness and the affected party in the outcome of the litigation. 4. The Role of the Non-Party Witness in the Litigation – Whether the Background The privilege against self-incrimination is well-established in criminal cases. As for civil cases, the United States Supreme Court extended the privilege in McCarthy v. Arndstein, holding that “the privilege against self-incrimination is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.”1 Further, the Supreme Court has clarified the breadth of the privilege, holding that it may be invoked if the answer to a question would be incriminating.2 However, while in a criminal proceeding it is clear that the jury cannot draw an inference of guilt from a defendant’s failure to testify,3 the same is not necessarily true in civil cases and varies from jurisdiction to jurisdiction. The following is an overview of the varying approaches of which Alabama practitioners should be cognizant and consider when representing a client in a civil proceeding and there is, or the possibility of, a related criminal proceeding involving the client, opposing party, or witness. 14 Birmingham Bar Association


Birmingham Bar Association Bulletin - Summer 2014
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