The Civil Litigator
| Publication year | 1981 |
| Pages | 293 |
| Citation | Vol. 10 No. 2 Pg. 293 |
1981, February, Pg. 293. The Civil Litigator
The privilege against self-incrimination as embodied in Article II, Section 18 of the Colorado Constitution and the Fifth Amendment to the United States Constitution (applicable to the states pursuant to the Fourteenth Amendment) was originally intended for use in criminal proceedings. There is, however, an emerging judicial interest in its application to civil litigation.
The civil litigator must recognize both the applicability and limitations of the privilege. The privilege against self-incrimination is generally miscategorized as a privilege. In fact, it is a right granted by constitutional fiat, unlike common-law privileges which are statutorily granted.(fn1)
The privilege is available both testimonially and in pleadings.(fn2) It will be available to a party answering a complaint inasmuch as the answer or admissions contained therein would be admissible in separate trials(fn3) and could easily reveal other evidence or serve as a foundation therefor. However, the use of the privilege by a party will not relieve that party of the consequences should the answer be relevant or appropriate pursuant to discovery.(fn4)
It is axiomatic that the privilege is personal. It may be raised only by an individual and only with respect to testimonial evidence. It is not available to a corporation(fn5) or partnerships, associations or other groups.(fn6) The same is true for close corporations,(fn7) as well as corporations owned by one shareholder. A subsequent owner of a corporation may not assert the privilege to prevent disclosure of records belonging to a previously dissolved or owned corporation.(fn8)
The witness must provide corporate or association documents in the witness' custody even though the documents may incriminate him or her personally.(fn9) However, a witness need not answer questions about the document if such testimony would personally incriminate the witness, nor does the witness need testify as to the whereabouts of the documents should the witness not be able to produce them.(fn10)
The testimony to be adduced from the witness, as well as the personal papers of the witness, will authorize the invocation of the privilege.(fn11) However, compelled disclosure of physical evidence or characteristics which are not to be used for the testimonial content are not protected by the privilege. Those would, for example, include blood samples,(fn12) handwriting samples,(fn13) voice exemplars(fn14) and the like.
A person's personal documents, records and
papers are protected by the privilege even if they relate to business activities. This is applicable even where the documents would incriminate both the witness and some other person. Thus, where a witness asserts a valid personal claim of the privilege, it is immaterial that another person is protected as well, or indeed even that the witness' intent is to protect the other person.(fn15)
However, counsel should be aware of an exception to this general principle that exists, which is referred to as the "required records doctrine." That is to say, records which are required to be kept by law are not protected by the privilege even if incrimination to the person would result. The present limits of the "required records doctrine" are somewhat unclear. For example, in an income tax form a person may assert the privilege with respect to source of income, but must file the return with sufficient information so that the taxing authorities may properly assess and evaluate the amount of tax.(fn16) The theory behind the doctrine is probably that the governmental interest in required...
To continue reading
Request your trial