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Birmingham Bar Association Bulletin - Summer 2014

Civil Law of a party to the suit, when present at the trial, to testify as to a fact in issue, furnished legitimate ground of comment in argument to the jury by the opposite party. The defendant availed himself of his constitutional right of refusal to answer on the ground stated, and he had his benefit and protection from prosecution in exercising his privilege; but he could not expect to extend this privilege to the deprivation of the plaintiff of his right to comment in argument on his silence, no matter upon what ground he might put it.14 While there are few Alabama cases that directly and extensively speak to the “negative” or “adverse inference” that may be drawn from a party’s assertion of the Fifth Amendment privilege against selfincrimination, such an inference has been recognized under Alabama law. It should be noted, however, that such an inference is not available against a non-party seeking the protections of the Fifth Amendment. Rule 512A(b) of the Alabama Rules of Evidence provides that “the claim of a privilege by a nonparty witness in a civil action or proceeding is governed by the same principles that are applicable to criminal cases by virtue of Rule 512.”15 Other State Court Approaches Other states have taken varying approaches with regard to the adverse inference. Some states, such as Tennessee, follow the federal approach and permit an adverse inference to be drawn from a party’s invocation of the Fifth Amendment in a civil case “only when there is independent evidence of the fact to which a party refuses to answer.”16 Other states, such as California, do not permit an ad- continued on page 24 non-party witness was a key figure in the litigation and played a controlling role in respect to any of its underlying aspects also logically merits consideration by the trial court. “The overarching concern is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth.”8 The Current State of the Law in Alabama The Fifth Amendment privilege against self-incrimination is available not only in federal civil proceedings, but in state civil proceedings as well.9 The Alabama Constitution also affords a privilege against self-incrimination in civil proceedings. 10 Although there are only a few decisions speaking to the issue of drawing an adverse inference for invoking the protection of the Fifth Amendment in civil proceedings, and none of which speak to the issue with any detail or specificity, a party invoking his or her right against self-incrimination in not without consequences under Alabama law. The Alabama Supreme Court has recognized the decision of the United States Supreme Court in Baxter v. Palmigiano and held that adverse inferences may be drawn by the trier of fact pursuant to a party’s assertion of the Fifth Amendment privilege against selfincrimination. 11 The Alabama Rules of Evidence also expressly provide that an inference may be drawn from the assertion of a privilege. Rule 512A(a) of the Alabama Rules of Evidence provides that “in a civil action or proceeding, a party’s claim of a privilege, whether in the present action or proceeding or upon a prior occasion, is a proper subject of comment by judge or counsel,” and that “an appropriate inference may be drawn from the claim.”12 Notably, the inference permitted by Rule 512A has been held to extend to a claim of privilege against selfincrimination. In Ex parte Ebbers, the Alabama Supreme Court, citing Rule 512A and the United States Supreme Court’s decision in Baxter, held that “if a stay is not granted to the defendant, and if he elects to assert his Fifth Amendment right as to any deposition questioning or document-production request, the jury . . . could be instructed at trial that an adverse inference could be drawn against him as a result.”13 In addition to the Alabama Supreme Court’s recognition of Baxter, Alabama law has long recognized that a party’s decision to exercise his or her right against self-incrimination permits the opposing party to comment on the silence: The defendant’s refusal to answer certain questions was the subject of comment in argument by counsel to the jury. The question is now presented whether it was permissible for the plaintiff, over the defendant’s objection, to read to the jury those interrogatories which the defendant refused to answer, and the defendant’s ground of refusal, and to comment on the same in argument. In criminal prosecutions the failure or refusal of the defendant to testify cannot be commented on in argument; but we know of no authority applying this rule to civil actions, nor do we see any reason for so doing. The plaintiff in a civil action has rights, as well as the defendant; and one of these rights is to secure evidence to support his cause in court, even to calling upon the defendant as a witness to supply it. It has always been the rule in civil actions that the failure Birmingham Bar Bulletin/ Summer 2014 15


Birmingham Bar Association Bulletin - Summer 2014
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