Suffering Adverse Inference from Taking the Fifth in Civil Proceedings
| Publication year | 1983 |
| Pages | 1445 |
| Citation | Vol. 12 No. 9 Pg. 1445 |
1983, September, Pg. 1445. Suffering Adverse Inference From Taking the Fifth In Civil Proceedings
There is a sharp divergence between federal practice and the traditional rule with respect to the permissibility of imposing burdens or penalties of any kind on a civil litigant exercising a privilege not to testify. This article examines specifically the different responses of federal and state courts to the issue of allowing adverse inferences to be drawn from the invocation, by a civil litigant, of the Fifth Amendment privilege against self-incrimination.(fn1) The reasoning and policy underlying these contrasting responses is of particular relevance to Colorado, where the question of imposing adverse inferences has been neither addressed nor resolved.
The proposed Federal Rule of Evidence ("FRE") 513, promulgated by the U.S. Supreme Court, would have barred the taking of an inference from the exercise of any privilege not to testify.(fn2) However, Congress declined to adopt this rule, although it retains some authority in its present form as U.S. Supreme Court Standard 513. Standard 513(a) is consistent with "the weight of authority and preexisting practice in federal courts."(fn3)
Although the Standard 513(a) makes no distinction between civil and criminal cases, the Advisory Committee was influenced by the reasoning of the court in the criminal case of Griffin v. California,(fn4) in which the court admonished that allowing comment on or inference from the exercise of the privilege against self-incrimination "is a penalty . . . [which] cuts down on the privilege by making its assertion costly."(fn5)
State Practice
Standard 513(a) is not constitutionally mandated in civil cases. Notwithstanding its holding in Griffin, the Supreme Court ruled in Baxter v. Palmigiano(fn6) that "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."(fn7) In any event, FRE 501 leaves the determination of the effect of exercising a privilege not to testify in civil cases to state law, where "state law supplies the rule of decision."(fn8) Some states have adopted the language of proposed FRE 513 intact,(fn9) while others adhere to the traditional doctrine that a civil litigant's refusal to answer questions not involving self-incrimination gives rise to an inference that a response to the question would have been unfavorable to the litigant's interest.(fn10)
Courts in New Jersey and Utah have permitted the taking of an adverse inference even where the party's refusal to testify was based on a fear of self-incrimination.(fn11) These courts have held that the taking of such an inference does not unlawfully punish the silent...
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