The Privilege Against Self-Incrimination

• Pages: 135-171

135

CHAPTER IV

THE PRIVILEGE AGAINST

SELF-INCRIMINATION

The Fifth Amendment privilege against self-incrimination has had a

substantial impact on the course of civil antitrust litigation in recent

years. The Fifth Amendment declares in pertinent part: “No person . . .

shall be compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V. In the typical case, present or former employees

of a corporate defendant invoke this privilege in response to requests for

civil discovery. Depending on the number and importance of the

witnesses who invoke the privilege, it can have a drastic effect on the

parties’ ability to gain access to the facts surrounding an alleged

violation of the antitrust laws.

Although invocation of the privilege can block the production of

evidence to plaintiffs, the privilege is not without its pitfalls for the

corporate defendant. The corporation usually has no control over whether

present or former employees, who will typically be represented by

separate counsel, invoke the privilege or whether and when they might

waive it. Moreover, their invocations of the privilege may be asserted as

a basis for civil plaintiffs to obtain the release of testimony given to a

related criminal grand jury. Evidence of the employees’ assertions of the

privilege may be admitted at trial, and the jury is allowed to reach an

adverse inference against the corporate defendant based on those

assertions. Sanctions may even be imposed against the corporation when

its employees invoke the privilege as the basis for refusing to provide

information to the corporation for its use in responding to discovery

requests.

The following Federal Rules of Evidence are relevant to Fifth

Amendment issues:

Federal Rule of Evidence 501. General Rule

The common law—as interpreted by United States courts in

the light of reason and experience—governs a claim of

privilege unle ss any of the following provides otherwise: the

United States Constit ution; a federal statute; or rules

prescribed by the Supreme Court. But in a civil case, state law

136 Antitrust Evidence Handbook

governs privilege regarding a claim or defense for which state

law supplies the rule of decision.

Federal Rule of Evidence 1101(c). Rule of Privilege:

(c) The rule with respect to privileges [FED. R. EVID. 501]

applies at all stages of all actions, cases, and proceedings.

A. When May the Fifth Amendment Privilege be Invoked?

1. Type of Proceeding

The privilege against self-incrimination “can be asserted in any

proceeding, civil or criminal, administrative or judicial, investigatory or

adjudicatory, in which the witness reasonably believes that the

information sought, or discoverable as a result of his testimony, could be

used in a subsequent state or federal criminal proceeding.” United States

v. Balsys, 524 U.S. 666, 672 (1998) (citing Kastigar v. United States, 406

U.S. 441, 444-45 (1972)) (internal quotations omitted). The “privilege

may apply in antitrust litigation” and any other civil actions that “may

elicit information tending to demonstrate the element or elements of a

crime.” In re Grand Jury Subpoena (Under Seal), 836 F.2d 1468 (4th

Cir. 1988).

2. Stage of Proceeding

a. An individual may invoke the privilege to refuse to answer a

complaint without fear that such invocation will result in entry of a

default judgment. Nat’l Acceptance Co. v. Bathalter, 705 F.2d 924,

932 (7th Cir. 1983); In re Kmart Corp., 371 B.R. 823 (N.D. Ill.

2007); First Sav. Bank v. Orchowski, No. 91 C 7083, 1994 U.S. Dist.

LEXIS 5231 (N.D. Ill. Apr. 20, 1994); Gabriel v. Columbia Nat’l

Bank of Chicago AS T/U/T 2292, 592 N.E.2d 556 (Ill. App. 1st Dist.

1992).

b. The privilege may be invoked at a civil deposition or in response to

other forms of civil discovery. Kastigar v. United States, 406 U.S.

441, 444 (1972) (the privilege against self-incrimination applies in

“any proceeding, civil or criminal, administrative or judicial,

investigatory or adjudicatory”); McCarthy v. Arndstein, 266 U.S. 34,

40 (1924) (the privilege against self-incrimination “applies alike to

civil and criminal proceedings, wherever the answer might tend to

subject to criminal responsibility him who gives it”); United States v.

Kordel, 397 U.S. 1, 7 (1970) (interrogatories); Creative Consumer

Concepts, Inc. v. Kreisler, 563 F.3d 1070 (10th Cir. 2009) (civil

discovery); Campbell v. Gerrans, 592 F.2d 1054, 1057 (9th Cir.

The Privilege Against Self-Incrimination 137

1979); In re Folding Carton Antitrust Litig., 609 F.2d 867 (7th Cir.

1979) (deposition); In re Master Key Litig., 507 F.2d 292 (9th Cir.

1974) (same); United States v. Warr en, No. CIV 2:99-cv-814-DFL-

JFM, 2011 U.S.Dist. LEXIS 83314 (E.D. Cal. July 29, 2011).

c. The privilege may be invoked by a party or nonparty witness who

testifies at a civil trial. McCarthy v. Arndstein, 266 U.S. 34 (1924)

(witness in bankruptcy proceeding could invoke privilege); Coquina

Investments v. TD Bank, N.A., 760 F.3d 1300 (11th Cir. 2014); In re

Sterling-Harr is Ford, Inc., 315 F.2d 277, 279 (7th Cir. 1963)

(respondents in hearing arising out of bankruptcy proceeding could

invoke privilege); Adelphia Recovery Trust v. Bank of Am., N.A.,

No. 4:09-mc-00139, 2009 U.S. Dist. LEXIS 120757 (M.D. Pa. Dec.

29, 2009) (former employees could invoke privilege where called as

witnesses in suit alleging corporate fraud).

B. Threshold Requirements for Invocation

1. Risk of State or Federal Prosecution

A witness may invoke the Fifth Amendment privilege when the risk of

incrimination is “real and appreciable.” Brown v. Walker, 161 U.S. 591,

599, 605-06 (1896) (where a statute affords absolute immunity, there is

no risk of prosecution); United States v. Apfelbaum, 445 U.S. 115, 128

(1980) (privilege may be i nvoked when there are “substantial and real”

hazards of incrimination), on remand, 621 F.2d 62 (3d Cir. 1980);

Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 478

(1972) (Fifth Amendment “protects against real dangers, not remote and

speculative possibilities”); see also United States v. Bright, 596 F.3d 683,

690-91 (9th Cir. 2010); United States v. Allmon, 594 F.3d 981 (8th Cir.

2010).

a. Any Possibility of P rosecution Is Sufficient. Courts permit a witness

to invoke the privilege when, in the view of the court, “from the

implications of the question, in the setting in which it is asked, that a

responsive answer to the question or an explanation of why it cannot

be answered might be dangerous because injurious disclosure could

result.” Hoffman v. United States, 341 U.S. 479, 483-87 (1951).

Courts must look to the possibility—not the probability—of

prosecution, and if “there is any basis for a prosecution, the Fifth

Amendment protection applies.” Hillman v. City of Chicago, 918 F.

Supp. 2d 775, 778 (N.D. Ill. 2013) (quoting In re Corrugated

Container Antitrust Litig., 661 F.2d 1145, 1152 (7th Cir. 1981)). See

also Resnover v. Pearson, 965 F.2d 1453, 1462 (7th Cir. 1992)