Adverse Inferences Due to Invocation of the Fifth Amendment

• Publication year: 1996
• Pages: 43
• Citation: Vol. 25 No. 2 Pg. 43

25 Colo.Law. 69 Colorado Lawyer 1996.

1996, March, Pg. 43. Adverse Inferences Due to Invocation of The Fifth Amendment

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43

Vol. 25, No. 2, Pg. 69

Adverse Inferences Due to Invocation of The Fifth Amendment

by Peter A. Gergely

Sometimes, conduct that creates civil liability also can result in criminal charges or exposure to prosecution. If the criminal charges have not been finally resolved, the civil litigant may wish to invoke the privilege against self-incrimination in discovery or at trial to preserve his or her criminal defense. Precedent from the U.S. Supreme Court and the Colorado Court of Appeals allows the invocation of the privilege to be brought to the fact-finder's attention in a civil action. Further, the same fact-finder may draw adverse inferences against those who exercise their right to remain silent pursuant to the privilege. Thus, there are a number of factors that have to be carefully evaluated before an individual "takes the Fifth" during the course of a civil suit.

While no U.S. Supreme Court or Colorado case directly addresses the issue, a corporation also faces potentially adverse consequences when one or more of its employees is the subject of a criminal investigation and as a consequence invokes the privilege in a civil suit to which the corporation is a party.

This article addresses some of the issues regarding the invocation of the privilege against self-incrimination in a civil action within the context of two hypothetical fact patterns: first by an individual party, and second by a corporate employee.

The Individual Party

Assume that John Smith, a wealthy investor, has been charged with the murder of his former business partner. In addition, the wife of the deceased partner has sued Mr. Smith for the wrongful death of her husband and the father of her children. Mr. Smith has engaged separate counsel to defend him in the parallel civil and criminal proceedings.

Initially, Mr. Smith's counsel in the wrongful death action believed that the plaintiff, in an effort to take advantage of collateral estoppel,(fn1) would delay the civil trial until the criminal proceedings were concluded. However, certain key pieces of evidence were excluded during pre-trial hearings in the criminal case, and the plaintiff's counsel is now concerned that Mr. Smith may be acquitted, hampering her client's chances for success in the civil suit. Additionally, the plaintiff's counsel is concerned that the cost of defense in the criminal case may exhaust or seriously diminish Mr. Smith's financial resources, especially as Mr. Smith has waived his right to a speedy trial.

Accordingly, the plaintiff has changed her strategy and noticed Mr. Smith's deposition. While Mr. Smith's counsel is confident that Mr. Smith did not kill his expartner, he does not want Mr. Smith to say anything that could be used against him in the criminal proceedings. In an effort to postpone and delay the deposition, Mr. Smith's attorney moves to stay the civil proceedings and discovery pending the resolution of the criminal trial. In a carefully reasoned opinion, the trial judge denies the motion, holding that a stay is not constitutionally required.(fn2)

Mr. Smith's counsel advises Smith to invoke the privilege against self-incrimination at the time of his deposition. During the deposition, Mr. Smithidentifies himself, but takes the Fifth in response to all remaining questions. Prior to the civil trial, Mr. Smith's counsel files a motion in limine to exclude the evidence of Mr. Smith's refusal to answer questions during his deposition, on the grounds, among others, that the exercise of his constitutional privilege to remain silent should not be used against him. The motion is denied.

During the civil trial, the plaintiff's counsel calls Mr. Smith to the stand. In response to a lengthy series of questions, Mr. Smith repeatedly invokes the privilege against self-incrimination in front of the jury. At the conclusion of the case, over the objections of defense counsel, the judge instructs the jury:

The jury is not to decide liability or nonliability solely on the Defendant's assertion of his Fifth Amendment rights. The jury may draw any reasonable inferences...