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Birmingham Bar Association Bulletin | Winter 2014

Legislation John Bodie, Stella Jackson, and Jameria Moore, Family, Domestic Relations & Juvenile Courts Procedures Committee Recent Legislative Changes Affecting Court Procedures House Bill 325 (now Alabama Act 2014- 348). This Act changed the statute of limitations for certain felonies and created a tolling provision for the statute of limitation for theft by deception (the statute of limitation does not begin to run until the deception is discovered). Now, unless otherwise specified by law, the statute of limitation for felonies in Alabama is five (5) years instead of the three (3) years previously provided by law.10 On its face, this new law appears to only affect the area of criminal law. However, closer examination reveals that this new law potentially affects all civil trials as well (including criminal forfeiture cases typically handled by the criminal defense bar). When asking for a stay of the civil proceedings, the court will look to a party’s “reasonable apprehension” of criminal charges. Now, instead of simply looking to a three (3) year statute of limitation, we must take care to remember that there is now a five (5) year statute of limitation. And, in the case of theft (by deception), the statute of limitation does not begin to run until the deception is actually discovered. The creation of a tolling provision for theft by deception may create some interesting circumstances for the courts to ascertain whether there is “reasonable apprehension” of self-incrimination for yet undisclosed deception when the statute of limitation does not even begin to run until such deceptive acts are actually discovered (and not even when they should reasonably have been discovered). Continued on page 37 In the Summer 2014 issue of the Birmingham Bar Association Bulletin, Brent Grainger and Alexandra Shulman’s article, “An Overview of the Fifth Amendment and Adverse Inferences in Civil Cases,” reminded us that exercising the Fifth Amendment privilege against self-incrimination in a civil case may come at a cost: an adverse inference. Where their article stopped is where this article would like to pick up. The way to avoid this adverse inference in a civil case is to request a stay of the civil proceedings (or request a protective order on discovery) until such time as the criminal proceedings have concluded, in order to avoid those “adverse inferences.” In Ex parte Rawls,1 our Supreme Court outlined three issues that must be addressed to determine if a stay in a civil case is warranted: (1) whether the civil proceeding and the criminal proceeding are parallel; (2) whether the moving party’s Fifth Amendment protection against self-incrimination will be threatened if the civil proceeding is not stayed; and (3) whether the requirements of the balancing test set out in Ex parte Baugh2 and Ex parte Ebbers3 are met. Parallel Proceedings What is a “parallel” proceeding? This is really a two-part question. First, what is “parallel” and second, what counts as a proceeding? As to what is parallel, in Ex parte Flynn,4 the Supreme Court explained that a “‘parallel’ proceeding relates to the nature of the claims and charges at issue”5 and in Ex parte Rawls, the Court held that “overlapping acts” must be considered parallel proceedings.6 In short, it’s the exact same conduct. As to what is a proceeding, Alabama law does not require actual criminal charges to be pending in order to exercise the Fifth Amendment right against selfincrimination7 if a party can show that the party “is the subject of an ongoing, and overlapping, criminal investigation.”8 In fact, “a party is entitled to assert the Fifth Amendment privilege against self-incrimination although no criminal charges have been instituted, and even where the risk of prosecution is remote, so long as the party reasonably apprehends a risk of self-incrimination.”9 Here’s where things might get interesting. During the 2014 Regular Legislative Session, our Alabama Legislature passed 14 Birmingham Bar Association


Birmingham Bar Association Bulletin | Winter 2014
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