A criminal trial isn’t the only time you may need to “plead the Fifth.” You may need to assert your Fifth-Amendment right against self-incrimination in a civil lawsuit, even the middle of a lawsuit.
Imagine you were sued, you offered testimony through interrogatories in discovery, and then as the litigation evolved, you were asked for information that could incriminate you. Can you now plead the Fifth?
That is, can you plead your Fifth-Amendment right against self-incrimination during the course of civil litigation, or does the fact that you already offered testimony waive your right to now plead the Fifth?
Below is legal argument that you can plead the Fifth during the course of litigation. We provide this because we believe it provides a valuable overview of the law on this issue.
Names and identifying information have been changed.
Let’s set up the story, or “procedural posture,” as attorneys call it. The Defendant was sued, provided testimony during interrogatories, and later pled the Fifth during a deposition. Defendant Two argued that Defendant already waived his right to plead the Fifth by answering interrogatories. Below, counsel for Defendant argues that Defendant still has a right to plead the Fifth.
I. The Fifth-Amendment privilege is broad and strongly protected.
One of the chief functions of the Fifth Amendment privilege against self-incrimination is to protect those who maintain their innocence, as does Defendant. In 2001, the U.S. Supreme Court unanimously held that “one of the Fifth Amendment’s basic functions … is to protect innocent men … who otherwise might be ensnared by ambiguous circumstances.” Ohio v. Reiner, 532 U.S. 17, 21 (2001) (internal quotation marks omitted). The Reiner decision recognized “that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.” Id.
“The right to assert one’s privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution.” In re Master Key Litig., 507 F.2d 292, 293 (9th Cir. 1974) (citing Hoffman v. United States, 341 U.S. 479, 486-87 (1951)); Isaacs v. United States, 256 F.2d 654, 658 (8th Cir. 1958). There is no requirement that a criminal action be ongoing, and in fact, one my assert the privilege against self-incrimination even when “the federal government and the states do not appear particularly interested in bringing criminal actions.” Master Key, 507 F.2d at 293. “[W]hen a witness can demonstrate a fear of prosecution, which is more than fanciful or merely speculative, he has a claim of privilege that meets constitutional muster.” In re Grand Jury Proceedings: Samuelson, 763 F.2d 321, 324 (8th Cir. 1985). Moreover, the fact that the Fifth Amendment privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection. Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977).
Waiver of the Fifth Amendment privilege is strongly disfavored and “should be inferred only in the most compelling of circumstances.” Klein v. Harris, 667 F.2d 274, 288 (2d Cir. 1981). “Courts indulge every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotation marks omitted).
II. There was no waiver because Defendant’s deposition testimony risked further incrimination
Although “‘[d]isclosure of a fact waives the privilege as to details,’” courts have made clear that the Fifth-Amendment analysis “does not end there because the court must determine whether further questioning [would] ‘subject the witness to a ‘real danger’ of further crimination.’” In re Paige, 411 B.R. 319, 335 (Bankr. N.D. Tex. 2008) (quoting Rogers v. United States, 340 U.S. 367, 372-74 (1951)); see also Master Key, 507 F.2d at 293-94 (clarifying Rogers and noting that the possibility of “further crimination” trumps a determination of waiver as to details). As far back as 1920, the U.S. Supreme Court held that a civil litigant did not waive the privilege to refuse to testify on the details of a previously submitted verified schedule of assets and liabilities, since such filing “did not constitute a waiver of the right to stop short whenever the bankrupt could fairly claim that to answer might tend to incriminate him.” Arndstein v. McCarthy, 254 U.S. 71, 71 (1920). The verified schedule, “standing alone, did not amount to an admission of guilt or furnish clear proof of a crime,” and therefore were not construed as a waiver even though testimony as to the details may have been incriminating. Id. In short, the question of waiver as to details is irrelevant when the additional details sought might further incriminate. See id; Master Key, 507 F.2d at 294; In re Blan, 239 B.R. 385, 396 (Bankr. W.D. Ark. 1999) (discussed below). In such a case, “an ordinary witness may pick the point beyond which he will not go, and refuse to answer any questions about a matter already discussed, even if the facts already revealed are incriminating.” Master Key, 507 F.2d at 294 (internal quotation marks omitted).
In this case, Defendant’s testimony at his deposition regarding Plaintiff’s allegations would have run a real risk of further incrimination going beyond anything submitted in his interrogatory answers. The far-ranging accusations about which the parties sought to quiz Defendant at his deposition are simply not things that Defendant admits to in his interrogatory responses (Id., Ex. 4).
As Defendant Two essentially concedes, Duffy v. Currier is a case directly on point from this District. It refuses to find a waiver of the Fifth-Amendment privilege as to deposition testimony resulting from previous interrogatory answers in the same civil case. The Court explains:
Plaintiff argues that by answering the written interrogatories posed by plaintiff, has waived his privilege. This argument is without merit and the court does not believe these answers to the interrogatories constitute a general waiver of the Fifth Amendment privilege, except to the extent and scope to which the answers therein contained may be used in any subsequent trial or other proceedings. The situation is not similar to a criminal case where the defendant takes the witness stand and by so doing waives the privilege and is subject to broad questioning and cross-examination. The defendant in a civil case such as this may make partial answers and not thereby be required to answer more if it appears to the court that to answer more involves a reasonable chance or danger that the balance of the answer or further answers may be incriminating…. Assuming defendant had answered in a deposition as he did in the interrogatories, anything attempting to go beyond such clearly would be privileged in this court’s opinion if it tended toward incrimination.
291 F. Supp. 810, 814-15 (D. Minn. 1968). The interrogatory responses in Duffy—admitting that the defendant drank beer and drove the car involved in the auto accident at issue—are, if anything, far more directly incriminating and co-extensive with the allegations in the case than are the responses of Defendant. See id. Here then, no less than in Duffy, any potentially incriminating testimony “attempting to go beyond” Defendant’s actual interrogatory responses “clearly would be privileged.” Id. at 815.
Master Key from the Ninth Circuit is another case with closely analogous factual circumstances. There, a deponent testified as to certain incriminating facts, but refused to testify further concerning his involvement in an alleged price-fixing conspiracy. See 507 F.2d at 293-94. The Court held that the witness could “pick the point beyond which he will not go, and refuse to answer any questions about a matter already discussed, even if the facts already revealed are incriminating, as long as the answers sought may tend to further incriminate him.” Id. at 294. Noting the complexity of proving criminal conspiracies, the Ninth Circuit held that testimony dealing with the deponent’s “knowledge and intent and with specific instances of attempted restraint on competition, could very well provide a link in the chain of evidence needed in a subsequent prosecution.” Id.
Klein v. Harris is not contrary. Although Klein sets forth a widely used test for waiver, as numerous cases explain, such waiver is not applicable when additional testimony might further incriminate. Another case from this Circuit, In re. Blan (also relied upon by Defendant Two) leaves no ambiguity on this issue. After going through the Klein waiver analysis, the Court notes that “even if it were determined that Blan waived his Fifth Amendment privilege, it is well settled that a debtor may refuse to testify as to the details of previously disclosed facts if revealing those details would further incriminate him or subject him to new areas of incrimination.” 239 B.R. 385, 396 (Bankr. W.D. Ark. 1999). The same result is required here due to the risk of “further incrimination” even if the Court finds that waiver would otherwise be appropriate under the Klein test.
III. There was no waiver because of the lapse of time and changed circumstances
Even where a Fifth-Amendment waiver is found at a particular stage of a case—the classic waiver scenario involves presenting favorable testimony on direct examination, but refusing to be cross-examined on the issue, cf. Duffy, 291 F. Supp. at 814-15—courts are extremely reluctant to find that such a waiver carries forward into the future. The Second Circuit has explained that “when time passes and circumstances change between a waiver and a subsequent appearance, the initial waiver may not be applied to the subsequent event.” In re DG Acquisition Corp., 151 F.3d 75, 83 (2nd Cir. 1998). Numerous courts hold that “[a] waiver of the Fifth Amendment privilege at one state of a proceeding is not a waiver of that right for other stages.” United States v. TrejoZambrano, 582 F.2d 460, 464 (9th Cir.1978) (concluding that a defendant did not waive “his right to refuse to give self-incriminating testimony when he executed the incriminating affidavit in support of [another defendant’s] severance motion”); see also, e.g., United States v. Smith, 940 F.2d 710, 713 (1st Cir. 1991) (“Had Smith testified at the preliminary hearing, his testimony might have been used against him for impeachment purposes at trial. But by testifying at that pretrial stage, he would not have waived his Fifth Amendment privilege not to testify at trial.”); United States v. Wilcox, 450 F.2d 1131, 1141–42 (5th Cir.1971), cert. denied, 405 U.S. 917 (1972) (“[A] witness’s testimony in a prior proceeding or other disclosure of incriminating facts does not amount to a perpetual waiver of the privilege in all subsequent proceedings.”); United States v. Miranti, 253 F.2d 135, 140 (2nd Cir. 1958) (holding that “two appearances before the same grand jury separated by indictment and conviction for crimes related to the original disclosures and the passage of nearly a year” are not a single proceeding for waiver analysis); United States v. Bryser, 857 F. Supp. 306, 307 (S.D.N.Y. 1994) (“Waivers of privileges with respect to future testimony are not readily inferred.”). This District noted in F.T.C. v. Kitco of Nevada, Inc. that despite having presented previous interrogatory answers in a case, “[n]o one disputes that [the deponent] was entitled to assert his fifth amendment privilege in response to those deposition questions where there was a danger of self-incrimination.” See 612 F. Supp. 1282, 1290-91 (D. Minn. 1985).
As detailed above, nearly 10 months have passed since Defendant’s interrogatories were verified and a wide range of explosive allegations and evidence have emerged since that time. We are at a different stage of the case. To hold that that Defendant is now compelled against his will to provide deposition testimony on a range of potentially incriminating matters despite the dramatically darker storm clouds that have gathered since his interrogatory responses would be both extraordinary given the purpose of the Fifth Amendment privilege and contrary to the weight of case law. Waiver, even if found as to Defendant’s interrogatory responses, simply does not apply at this later and much different stage of the case.
IV. The scope of Defendant’s invocation of the privilege was appropriate
It is well-established that the Fifth-Amendment privilege “not only extends to answers that would in themselves support a conviction…but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.” Hoffman, 341 U.S. at 486 (emphasis added). “If the answers could possibly provide such a link, the witness may refuse to answer.” Master Key, 507 F.2d at 294. The asserted privilege must be upheld unless it is “‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.” In re French, 127 B.R. 434, 439 (Bankr. D. Minn. 1991) (quoting Hoffman, 341 U.S. at 488 (original emphasis)).
Because Plaintiff alleges that Defendant participated in a complex fraudulent scheme encompassing essentially every facet of operation and every relationship Defendant had with Plaintiff and the other Defendants, Defendant’s invocation of the privilege is necessarily also broad. Criminal conspiracy, antitrust, and RICO charges—which Defendant certainly has real reason to fear given Plaintiff’s invocation of their civil analogues—require not just evidence of individual bad acts, but complex proof of ongoing relationships, methods of dealing, and general familiarity with any number of aspects of an alleged scheme, even if such evidence is, in isolation, rather benign. Cf. In re Master Key Litig., 507 F.2d at 294. As noted above, even Defendant’s introduction to the industry through his previous employer, is potentially a “link in the chain” since Plaintiff insinuates that “bribe taking or payoffs” was going on even then. And despite Defendant Two’s objections, invoking the privilege is appropriate even when a party is simply quizzed on the veracity of previous statements. See U. S. v. Wilcox, 450 F.2d 1131, 1141 (5th Cir. 1971) (“when a witness is asked a question that could show that he had already committed a crime, i.e., perjury at a prior trial, his refusal to answer is permissible almost by the definition of self-incrimination”).
Because Plaintiff’s interrogatories explore a wide range of topics related to the case at hand, Defendant Two’s request that Defendant be ordered—not to simply answer particular questions—but to “answer all questions from counsel related to the subjects covered in Defendant’s answers to interrogatories” essentially requests a complete and total waiver of the privilege with regard to the grievous allegations in this case. (Defendant Two Mem. In Support of Mot. to Compel at 12); compare Master Key, 507 F.2d at 294 (holding that the Court must make a determination “as to each question to which a claim of privilege is directed”). Defendant Two may be happy to limit such inquiry to topics on which it thinks Defendant is likely to deny Plaintiff’s allegations of various defendants’ wrongdoing and require Defendant to go no further, but then Plaintiff would be the party complaining of waiver and its failure to sufficiently test such claims, and the likely result would no less be a total annihilation of Defendant’s basic constitutional privilege.
V. Even if waiver is otherwise appropriate, there is no prejudice to Defendant Two and therefore no waiver
Despite the fact that a finding of prejudice is necessary to finding the “most compelling circumstances” that are required for waiver under Klein, 667 F.2d at 288, Defendant Two’s only attempt to demonstrate that it would be prejudiced by Defendant’s alleged waivers is the unsupported and undeveloped suggestion that Defendant’s interrogatory answers were “a limited and presumably self-serving version of the facts.” (Defendant Two Mem. In Support of Mot. to Compel at 8) Even granting for the sake of argument that such answers were self-serving to Defendant, it is unclear how Defendant’s interrogatory responses do not also assist Defendant Two since they generally deny Plaintiff’s allegations and refrain from pointing any fingers at Defendant Two. The burden of showing prejudice rests on Defendant Two and its conclusory allegation of Defendant’s “presumably self-serving” actions hardly meets the requirement.
VI. Even if the Court finds waiver, the correct remedy is striking Defendant’s interrogatories, not compelling additional testimony
Even if the Court finds that Defendant’s interrogatory answers constitute waiver, the appropriate remedy is to simply strike Defendant’s prejudicial answers, not to forcibly compel testimony in the face of Defendant’s determination to assert the privilege. The Klein case so holds, 667 F.2d at 289, and various other decisions are consistent. See Lopez v. City of New York, 05-CV-3624, 2007 WL 2228150 (E.D.N.Y. July 31, 2007) (“Should Mr. Kirby thereafter specifically assert his Fifth Amendment privilege despite having waived it, and refuses to testify, the court will then strike his prior testimony”); Stanley v. Star Transp., Inc., 2010 WL 3417855, at *5 (W.D. Va. Aug. 30, 2010) (striking interrogatory answers where party later asserted privilege). The recent case of S.E.C. v. Brown from this District instructs that “a district court has discretion to fashion a response to a party’s invocation of the Fifth that is no more harsh than necessary to prevent unfair and unnecessary prejudice to the other side” and notes other courts that have shifted evidentiary burdens, stricken pleadings, or prevented a party from presented additional evidence on a topic. S.E.C. v. Brown, 579 F. Supp. 2d 1228, 1234 (D. Minn. 2008) (emphasis added) aff’d, 658 F.3d 858 (8th Cir. 2011). Compelled cross-examination in front of a jury on subjects for which the privilege was knowingly waived during direct examination, as in U.S. v. Musk, 719 F.3d 962, 968 (8th Circuit 2013)—relied upon by Defendant Two for its chosen remedy—is hardly analogous to this situation where the ability to fashion a more flexible remedy is much greater and where Defendant is not attempting to have it both ways. See also Duffy, 291 F. Supp. at 814-15 (“The situation is not similar to a criminal case where the defendant takes the witness stand and by so doing waives the privilege and is subject to broad questioning and cross-examination.”).
Defendant is not attempting to present only his version of the facts while preventing other parties from challenging his contentions. He recognizes that his invocation of the privilege may limit his ability to present evidence of his view of facts and accepts that the Court may decide that it must strike portions of the record that unfairly present a view of facts that is distorted towards Defendant and prejudicial to other parties (although it is entirely unclear what Defendant Two might think such portions of the record may be). He does not ask to have it both ways. But seeing as how it is quite doubtful that Defendant Two even wants Defendant’s interrogatory answers stricken (as noted, there is no prejudice here and they are largely favorable to Defendant Two), there seems to be no reason to actually do so here.
For the foregoing reasons, Defendant requests that Defendant Two’s motion be denied. If the Court nonetheless makes a finding of waiver, Defendant requests that the Court take such actions short of compelling additional testimony that may be appropriate to address any found prejudice to Defendant Two.
About the Authors: Attorney Lucas Thompson authored this article. Attorney Aaron Hall wrote the introduction.