GSB Vol. 15, NO. 1, Pg. 14. Caught Between a Rock and a Hard Place: Invocation of the Privilege Against Self-incrimination in Civil Cases.

• Author: by Aaron M. Danzig and Edward A. Marshall

Georgia Bar Journal

Volume 15.

GSB Vol. 15, NO. 1, Pg. 14.

Caught Between a Rock and a Hard Place: Invocation of the Privilege Against Self-incrimination in Civil Cases

GSB JournalVol. 15, NO. 1August 2009Caught Between a Rock and a Hard Place: Invocation of the Privilege Against Self-incrimination in Civil Casesby Aaron M. Danzig and Edward A. MarshallA Look at the Law

"[N]or shall [any person] be compelled in any criminal case to be a witness against himself...."(fn1)

"No person shall be compelled to give testimony tending in any manner to be self-incriminating."(fn2)

"No party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy, disgrace, or public contempt upon himself or any member of his family."(fn3)

The Fifth Amendment is one of the bedrock principles of the American criminal justice system. It prevents an accused from being forced to provide evidence against himself in a criminal prosecution and also prevents the prosecution from commenting on the accused's refusal to testify.(fn4) The Fifth Amendment's impact on the judicial process, however, extends beyond the purely criminal proceeding.

In a civil suit, a witness or party may refuse to answer questions posed at trial or in discovery by invoking the Fifth Amendment right against self-incrimination.(fn5) The Fifth Amendment

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.(fn6)

Invocation of the Fifth Amendment in civil proceedings, however, is not without its adverse consequences. Indeed, there are very real ramifications for a civil litigant who elects to exercise that right.(fn7)

Civil litigators should be familiar with the application of the Fifth Amendment and its Georgia counterparts to civil cases in order to counsel their clients effectively on the risks and benefits of testifying or invoking the privilege. Likewise, opposing counsel must be aware of avenues to attack a witness's invocation of the Fifth Amendment or its Georgia analogues, including attempting to overcome the invocation, moving to strike the witness's testimony i and seeking an adverse inference against the invoking party.

Toward these ends, this article | explores federal and Georgia case law on the following topics:

1. When the Fifth Amendment and its Georgia analogues apply; 2. Asserting the privilege; 3. Opposing assertion of the privilege; 4. Seeking a stay of proceedings; 5. Seeking the adverse inference; and 6. The application of the adverse inference in the corporate context.

Does the Privilege Apply?

The threshold question that an attorney must be prepared to answer in evaluating the invocation of the self-incrimination privilege is whether the privilege applies to the relevant questioning, be it in trial, deposition or other civil discovery.

The Fifth Amendment

In both federal and state proceedings, the Fifth Amendment creates a privilege to decline to respond to certain inquiries where the response would provide a link in the chain of evidence needed to prosecute an individual for a crime.(fn8) It is not required that the witness's response would itself necessarily sustain a criminal conviction. That is, the "privilege against self-incrimination extends not only to those answers that would in themselves support a conviction, but also to answers creating a 'real and appreciable' danger of establishing a link in the chain of evidence needed to prose-cute."(fn9) Having said that, "[t]he privilege applies only in 'instances where the witness has reasonable cause to apprehend danger' of criminal liability."(fn10) An unrealistic fear of criminal prosecution, for example, in circumstances in which the statute of limitations would necessarily bar prosecution, will not sustain the invocation of the privilege.

It is important to note that the Fifth Amendment privilege is a personal one; there is no Fifth Amendment privilege for corpora-tions.(fn11) Thus, "[a] corporate officer may not withhold testimony or documents on the ground that the corporation would be incriminated. Nor may the custodian of corporate books or records withhold them on the ground that he personally might be incriminated by their production."(fn12) The custodian of records, however, may be entitled to "act of production" immunity such that, if there were a later prosecution of the custodian, the fact that the custodian of records for the corporation was the individual who produced the records could not be disclosed to the jury.(fn13)

The Georgia Analogues to the Fifth Amendment

The Georgia Constitution, loosely parroting the Fifth Amendment, provides that "[n]o person shall be compelled to give testimony tend- ing in any manner to be self-incrim-inating."(fn14) A review of case law shows the federal and state constitutional privileges to be largely, if not entirely, coterminous.

The Georgia Code, however, provides a more expansive catalogue of grounds upon which a civil litigant may refrain from providing testimony. In particular, O.C.G.A. § 24-9-27(a) provides that "[n]o party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy, disgrace or public contempt upon himself or any member of his family."(fn15) Subsection (b) of the statute also provides that, outside the realm of post-judgment discovery, "no party or witness shall be required to testify as to any matter which shall tend to work a forfeiture of his estate."(fn16)

These code sections have enjoyed limited development by the Georgia courts, but the authority that exists cuts significant inroads into the statute's ostensibly expansive scope.

The courts have construed the privileges narrowly. Despite statutory language that would seem to suggest to the contrary, the privilege protecting a witness from disclosing disgraceful facts applies only if "[t]he facts ... directly involve disgrace and [do] not ... merely tend[ ] to disgrace indirect-ly."(fn17) In addition, the privilege against disgrace can only be invoked when the testimony sought by the questioner is not material to the action, but instead operates to affect the witness's credibility. Stated differently, "it is only where the proposed answer has no effect on the case except to impair the witness' credibility that the witness may fall back on the privilege."(fn18) Additionally, only the witness herself may invoke the privilege; an objection by a family member that testimony would bring disgrace upon him is necessarily ineffectual.(fn19)

The threshold for invoking the privilege against testimony that would lead to the forfeiture of an estate is likewise quite high. It is not, for example, impermissible to compel a witness to testify even if the testimony elicited would cause him to lose his job or result in the inability of the witness to earn a living in a particular profession.(fn20)

Invocation of these statutory privileges is not without disadvantageous consequences. As in the context of the Fifth Amendment, an adverse inference may be drawn against a civil litigant invoking the privileges provided by O.C.G.A. § 24-9-27.(fn21)

Asserting the Privilege

To borrow from recent political parlance, the Fifth Amendment operates as a scalpel, not a hatchet. "There is no blanket Fifth Amendment right to refuse to answer questions in civil proceed-ings."(fn22) Instead, "the privilege must be specifically claimed on a particular question."(fn23) "The federal courts have held that where a party invokes the privilege against self-incrimination in discovery matters, he may not make a blanket refusal to answer all questions, but must specifically respond to every question, raising the privilege in each instance he determines neces-sary."(fn24) Georgia law holds like-wise.(fn25) Accordingly, a witness or party seeking to invoke his self-incrimination privilege in a deposition or other proceeding must do so on a question-by-question basis.

The individual claiming the privilege has the burden "to state the general reason for his refusal to answer and to specifically establish that 'a real danger of incrimination exist[s] with respect to each question.'"(fn26)

Invocation of the privilege must be timely. That is, it must be made at the time that the party refuses to answer pertinent questions. A later assertion of the privilege against self-incrimination may be insufficient to shield the incriminating statements from discovery.(fn27)Likewise, an objection to responding to certain inquiries on grounds other than self-incrimination may preclude the later invocation of the privilege if the initial objection is overruled by the trial court.(fn28)

Opposing Assertion of the Privilege

The witness is not the final arbiter of the propriety of the invocation...