The Privilege Against Self-Incrimination
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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. In the typical case, present or former employees of a corporate
defendant invoke the Fifth Amendment 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 usually be represented by
separate counsel, invoke the privilege. Nevertheless, their invocations of
the privilege may be asserted as a basis for the release to civil plaintiffs
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. Sanctions may even be imposed against the corporation when
its employees invoke the privilege to refuse to provide information to the
corporation for its use in responding to discovery requests directed to the
corporation.
The following Federal Rules of Evidence are relevant to Fifth
Amendment issues:
Federal Rule of Evidence 501. General Rule
Except as otherwise required by the Constitution of the United
States or provided by Act of Congress or in rules prescribed by the
Supreme Court pursuant to statutory authority, the privilege of a
witness, person, government, State, or political subdivision thereof
shall be governed by the principles of the common law as they may
be interpreted by the courts of the United States in the light of
reason and experience. However, in civil actions and proceedings,
132 Antitrust Evidence Handbook
with respect to an element of a claim or defense as to which State
law supplies the rule of decision, the privilege of a witness, person,
government, State, or political subdivision thereof shall be
determined in accordance with State law.
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)).
2. Stage of Proceeding
a. An individual may invoke the privilege to refuse to answer a
complaint without fear of entry of a default judgment resulting
therefrom. Nat’l Acceptance Co. v. Bathalter, 705 F.2d 924, 932 (7th
Cir. 1983); First Sav. Bank v. Orchowski, 1994 U.S. Dist. LEXIS
5231 (N.D. Ill. 1994); de Antonio v. Solomon, 42 F.R.D. 320, 322
(D. Mass. 1967).
b. The privilege may be invoked at a civil deposition or in response to
other forms of civil discovery. United States v. Kordel, 397 U.S. 1, 7
(1970) (interrogatories); 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); Gordon v. FDIC, 427 F.2d 578, 580
(D.C. Cir. 1970) (interrogatories).
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); In re
Sterling-Harris Ford, Inc., 315 F.2d 277, 279 (7th Cir. 1963)
(respondents in hearing arising out of bankruptcy proceeding could
The Privilege Against Self-Incrimination 133
invoke privilege); Kendall v. Gore Props., Inc., 236 F.2d 673, 683
(D.C. Cir. 1956) (in civil damage action against murderer’s corporate
employer, murderer could invoke privilege).
B. Threshold Requirements—When Is The Privilege Properly
Invoked?
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 statute affords absolute immunity, there is no
risk of prosecution); see also United States v. Apfelbaum, 445 U.S. 115,
128 (1980) (privilege may be invoked 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”).
a. Despite this formulation of the applicable test, many courts permit a
witness to invoke the privilege when he can demonstrate “any
possibility of prosecution which is more than fanciful.” In re Folding
Carton Antitrust Litig., 609 F.2d 867, 871, 873 (7th Cir. 1979) (order
holding witness in contempt for refusal to answer based on Fifth
Amendment was in error because it was based on trial court’s view
that prosecution was unlikely); see Resnover v. Pearson, 965 F.2d
1453 (7th.Cir. 1992) (it is only when there is but a fanciful
possibility of prosecution that a claim of the Fifth Amendment is not
well taken); In re Corrugated Container Antitrust Litig., 620 F.2d
1086, 1091-93 (5th Cir. 1980) (trial court erred in holding witness in
contempt for refusal to testify where testimony could have revealed
participation in price fixing scheme).
b. The test is not the likelihood, but the possibility of prosecution.
Hoffman v. United States, 341 U.S. 479, 487 (1951) (privilege
extends to matters that “might be dangerous”); United States v.
Castro, 129 F.3d 226, 229 (1st Cir. 1997) (“while chimerical fears
will not suffice, the prospective witness need only limn some
reasonable possibility that, by testifying, he may open himself to
prosecution”); Gleason v. Welborn, 42 F.3d 1107 (7th Cir. 1994)
(unless clear that the testimony cannot possibly have a tendency to
incriminate the witness, the trial court may properly allow the
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