73 J. Kan. Bar Assn. 3, 14-21 (2004). Invocation of the Fifth Amendment Privilege in Kansas Proceedings: Application of the Privilege and Rebutting the Imposition of Adverse Inferences.

• Author: By Jeff D. Morris

Kansas Bar Journals

Volume 73.

73 J. Kan. Bar Assn. 3, 14-21 (2004).

Invocation of the Fifth Amendment Privilege in Kansas Proceedings: Application of the Privilege and Rebutting the Imposition of Adverse Inferences

Kansas Bar Journal73 J. Kan. Bar Assn. 3, 14-21 (2004)Invocation of the Fifth Amendment Privilege in Kansas Proceedings: Application of the Privilege and Rebutting the Imposition of Adverse InferencesBy Jeff D. MorrisI. Introduction

In a variety of circumstances, counsel can be confronted with criminal or civil proceedings that necessitate advising a client to invoke the Fifth Amendment privilege against self-incrimination. The client may be a party or only a witness in the action. The circumstance may involve testimonial examination, written requests for sworn responses, or a formal demand for the production of documents and materials. It is necessary for counsel, either independently or in conjunction with criminal counsel, to understand the proceedings in which the Fifth Amendment privilege can be asserted, recognize the circumstances that justify assertion of the privilege, and grasp the manner in which the protection can be invoked or waived. Equally, counsel's awareness of the applicable standards provides a basis on which to challenge an unreasonable invocation of the privilege by an opposing party or witness.

It is important for the Kansas lawyer to understand the different treatment assessed by the federal courts and Kansas state law on the issue of whether an adverse inference can be imposed on an individual for asserting the privilege in a civil proceeding. Prevailing federal law permits an adverse inference in civil matters. Kansas law, while somewhat ambiguous on the issue, supports the argument that it is not permissible to comment upon or urge an adverse inference from the privilege against self-incrimination being asserted in any proceeding. Because of the potential for adverse inferences, counsel may seek a stay of any civil proceedings pending resolution of the criminal case that serves as the basis for asserting the privilege. A stay is an extraordinary remedy, but factors can be employed that support imposition of a stay. Also, discovery can be structured to assess the interests of an individual and an assertion of the Fifth Amendment privilege, while avoiding an outright stay of the proceedings.

II. The Scope of the Fifth Amendment Privilege

The Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.(fn1)

The guarantees of the Fifth Amendment are enforced against the states through the 14th Amendment, which holds the states to the same standards that protect those personal rights against federal encroachment.(fn2) The Kansas Bill of Rights incorporates the privilege against self-incrimination in Section 10. Absent authority providing additional protection, the protections afforded by the Kansas Constitution equal those under federal law, but do not exceed those standards.(fn3)

III. Availability of the Privilege in Civil and Criminal Proceedings

Supplementing the constitutional authority relevant to the privilege against self-incrimination, K.S.A. 60-423(a) reinforces through an evidentiary rule that any criminal defendant retains a privilege against self-incrimination and a right not to testify at any criminal proceeding. This privilege against self-incrimination is to be liberally construed.(fn4) K.S.A. 60-425, consistent with federal law, broadens the privilege beyond the scope of criminal cases, stating:

Subject to K.S.A. 60-423 [exceptions to privilege maintained by criminal defendant] and 60-437 [waiver of privilege by contract or previous disclosure], every natural person has a privilege, which he or she may claim, to refuse to disclose in an action or to a public official of this state or the United States or any other state or any government agency or division thereof any matter that will incriminate such person.(fn5)

Accordingly, Kansas statute and federal case law expressly recognize that the privilege against self-incrimination can be asserted in any action, not just criminal matters.(fn6) The privilege, however, can only be asserted by a natural person. It is a privilege founded on an individual right, and is thus not applicable to "legal" persons such as a corporation.(fn7) Because the Fifth Amendment applies in both criminal and civil matters, it "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."(fn8)

The ability to assert the privilege against self-incrimination equally applies in judicial and administrative proceedings and in investigatory or adjudicatory matters.(fn9) The privilege can be asserted in response to questions propounded in a civil action, whether the person asserting the privilege is a party or a witness.(fn10) Also, through application of the "act-of-production" doctrine, persons compelled to turn over personal papers that are incriminating or other materials pursuant to a subpoena duces tecum or a summons, may invoke the Fifth Amendment privilege against self-incrimination as a bar to production when the act of producing the evidence would contain "testimonial" features.(fn11) The "act of production" can only be raised with regard to papers and materials personally held. The privilege is maintained as a personal right. For example, a custodian of records for a company cannot successfully invoke the Fifth Amendment protection to forestall the production of business records maintained by the company that may, in fact, implicate the very person who is acting as the custodian of records.(fn12)

IV. Basis and Procedure for Invoking the Privilege

Historically, the law provides that the Fifth Amendment privilege against self-incrimination protects the person claiming it from being compelled to give answers that would furnish a link in the chain of evidence needed to prosecute the person for a crime.(fn13) The individual asserting the privilege is not "required to prove the hazard [of incrimination] in the sense in which a claim is usually required to be established in court."(fn14) Rather, the privilege may validly be asserted whenever the witness has reasonable cause to apprehend danger from a direct answer.(fn15) An individual's apprehension must be reasonable in light of the witness' specific circumstances, the content of the questions, and the setting in which the questions are asked.(fn16)

K.S.A. 60-424 defines incrimination as follows:

A matter will incriminate a person within the meaning of this article if it constitutes, or forms an essential part of, or, taken in connection with other matters disclosed, is a basis for a reasonable inference of such a violation of the laws of this state as to subject the person to liability to punishment therefore, unless he or she has become for a reason permanently immune from punishment for such violation.

The key principle is that an individual should not be compelled, when acting as a witness in any action, to give testimony that might tend to show that the individual has committed a crime.(fn17) It need only be evident from the questions, any implications of the question, and the setting in which the question is asked, that a responsive answer to the question or an explanation of why it cannot be answered might result in "an injurious disclosure."(fn18) In addition to these standards, it is important to note that the privilege against self-incrimination is justifiably raised to a question even when the answer does not directly implicate criminal wrongdoing - so long as the answer could lead to incriminating evidence or information.(fn19)

The individual asserting the privilege must factually establish, with some specificity, that the risks of incrimination resulting from compelled testimonial communications to be "substantial and real, not merely trifling or imaginary, hazards of incrimination."(fn20) For example, an individual who has been provided immunity from prosecution for certain criminal conduct arguably cannot raise a credible claim of privilege in response to questions posed in a civil case about the same conduct.(fn21) As another example, an individual cannot have a reasonable concern based on conduct for which criminal statutes of limitation have expired. An individual cannot justify the privilege merely through a conclusory assertion that responsive testimony would be injurious or incriminating. Further, a "generalized fear of criminal prosecution" for a violation of law is insufficient to justify a blanket claim of the Fifth Amendment privilege.(fn22)

In the civil context, justification must be provided for each particular question not answered and for each specific document not produced on...