67 The Alabama Lawyer 40 (2006). Assertion of The Fifth Amendment Privilege Against Self-Incrimination in Civil Proceedings.

• Author: BY G. RAY KOLB, JR. AND WILLIAM L. PFEIFER, JR.

The Alabama Lawyer

2006.

67 The Alabama Lawyer 40 (2006).

Assertion of The Fifth Amendment Privilege Against Self-Incrimination in Civil Proceedings

Assertion of The Fifth Amendment Privilege Against Self-Incrimination in Civil ProceedingsBY G. RAY KOLB, JR. AND WILLIAM L. PFEIFER, JR.Introduction

The Fifth Amendment to the United States Constitution states, in relevant part, that a person shall "[n]ot be compelled in any criminal case to be a witness against himself."(fn1) Article I, § 6 of the Alabama Constitution provides, "[t]hat in all criminal prosecutions, the accused shall not be compelled to give evidence against himself."(fn2) Although the phrase "to give evidence against himself" was once viewed as being broader than the protection given by the Fifth Amendment, the Alabama Supreme Court has stated that the two offer essentially the same privilege against self-incrimination.(fn3)

While it is relatively simple to understand this rule's applicability in the course of actual criminal proceedings, the prohibition against compelling self-incrimination becomes more complex when the issue arises during civil litigation. Although a person's privilege against self-incrimination must be protected, the courts must also attempt to protect the right of others to seek redress and receive compensation for civil wrongs.

History

The first serious treatment of this issue in Alabama was in the case of Ex parte Baugh, 530 So. 2d 238 (Ala. 1988).(fn4) In Baugh, the defendant refused to answer any questions at her deposition, asserting her Fifth Amendment privilege because she was also subject to a grand jury investigation at that time. The trial court held Baugh in contempt of court for her failure to cooperate with the discovery process. The Alabama Supreme Court noted that this was a case of first impression in Alabama. After reviewing analogous federal court cases on the issue, the Alabama Supreme Court held that based on a "balancing interest" of the parties, Baugh had shown sufficient justification for a protective order and that it was an abuse of discretion when the trial court found her in contempt for her refusal to comply with discovery requests.(fn5)

As a result of Baugh, the law in Alabama became that a party could not be compelled to testify or be compelled to provide discovery in a civil proceeding if there was a parallel criminal action pending against the party. This new rule also applied even if there was only a potential parallel criminal action on the horizon.(fn6) In Sanders v. Williams,(fn7) Williams was under criminal investigation for the same actions which gave rise to the civil suit against him. Williams moved for a stay of the proceedings, but the trial court denied the request because no actual criminal charges were pending against him. The Alabama Supreme Court held that, as it had in Ex parte Coastal Training Institute,(fn8) the pendency of criminal proceedings was not necessary to the assertion of the privilege. A party could claim the Fifth Amendment privilege even if the risk of prosecution was remote. The court specifically rejected the argument that Williams could simply assert his Fifth Amendment right to remain silent to individual incrimination deposition questions because that would be too narrow an application of the privilege. Quoting itself in Coastal, the court stated "[t]his point-by-point review of the civil case may lead to a 'link in the chain of evidence' that unconstitutionally contributes to the defendant's conviction." Thus, the court held that the trial court abused its discretion in denying the requested stay.

However, a potential conflict between a party's criminal and civil matters did not automatically require a stay of the civil proceedings pending the outcome of the parallel criminal proceeding.(fn9) "The Fifth Amendment privilege against self-incrimination must be liberally construed in favor of the accused, Hoffman v. United States, 341 U.S. 479 (1951), and the privilege is applicable in state as well as in federal proceedings, Malloy v. Hogan, 378 U.S. 1 (1964), and in civil as well as in criminal proceedings, Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979) The Fifth Amendment does not mandate a stay of civil proceedings pending the outcome of criminal proceedings. Whether to grant a stay, based on a balancing of the interests of the parties - i.e., contrasting the interest of a party in postponing the civil proceedings with the possible prejudice to the party who wishes the litigation to go forward - is within the trial court's discretion."(fn10) A trial court has the discretion to stay the entire civil proceeding, to merely postpone all or some of the civil discovery, or to impose protective orders and conditions against one or more of the parties in the civil action - all remedies available to the trial court under Rule 26(c), Ala.R.Civ.P.(fn11) In some circumstances, the civil matter could proceed in at least a limited fashion where a party was neither required to testify nor required to produce any documentation.(fn12) Thus, the standard of review on this issue is whether the trial court's ruling was an abuse of its discretion.(fn13)

Current State of Law

The Baugh court did not give much guidance on what the actual "balancing of interests" test would entail, stating merely...