Invocation of the 5th Amendment in Civil Cases
01.13.2022
Author: Attorney John R. Orton
In Wisconsin, parties and witnesses may invoke their 5th Amendment privilege against self-incrimination in civil cases. However, the privilege has its limits.
First, a witness or party may not assert the 5th Amendment to every question. There must be some connection between the information requested and the risk of criminal conviction.
Assertion of the fifth amendment does not itself result in the right to remain silent in the face of interrogation during the course of civil proceedings. “[T]he pendency of criminal proceedings does not by itself excuse a witness of his obligation to give testimony in civil proceedings. Some nexus between the risk of criminal conviction and the information requested must exist.” Martin–Trigona v. Gouletas, 634 F.2d 354, 360 (7th Cir.), cert. denied, 449 U.S. 1025, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980). Thus, legitimate invocation of the privilege requires a nexus between the criminal indictment and the requested discovery. Accordingly, if a deponent refuses to answer properly propounded questions at deposition on the improperly asserted ground of privilege, then sec. 804.01(2)(a), Stats., is violated and the trial court, upon proper exercise of discretion, may impose the sanctions of secs. 805.03 and 804.12, Stats.
B & B Investments v. Mirro Corp., 147 Wis. 2d 675, 686, 434 N.W.2d 104, 109 (Ct. App. 1988).
In B&B Investments, there was a pending criminal case against the plaintiff. The trial court evaluated the criminal complaint and found no nexus between the criminal case and some of the questions asked in the plaintiff’s deposition. The Wisconsin Court of Appeals quoted the trial court’s decision with approval:
One cannot assert the Fifth Amendment as a bar to answering any question. It is available only where the answer would subject an individual to criminal jeopardy. A cursory glance at the questions asked of the plaintiff at the deposition clearly would indicate that the answers to those questions would not, in any way, jeopardize the plaintiff’s standing as a defendant in the criminal prosecution. It is ludicrous to claim that.
B & B Investments, at 687.
In B & B Investments, the trial court struck the plaintiff’s pleadings and dismissed the case. The court noted the importance of parties giving deposition testimony in civil cases and held: “Willful failure to respond to deposition is a serious abrogation of a plaintiff’s statutory duties, and harsh sanctions are within the trial court’s discretion precisely for the purpose of discouraging such behavior.” Id. at 688.
Second, in most cases, a witness or party may not seek an order protecting the witness or party from testifying altogether. Litigants have a right to every person’s evidence in a civil case. Carney-Hayes v. Nw. Wisconsin Home Care, Inc., 2005 WI 118, ¶ 19, 284 Wis. 2d 56, 73, 699 N.W.2d 524, 533. Hence, every witness, and certainly every party, has a duty to give testimony in a civil case. If a witness or party is concerned about self-incrimination, the 5th Amendment is the shield which protects them. There is no need or legal basis for a “protective order” to completely insulate the witness from testifying altogether.
However, some federal courts permit a stay of civil proceedings while criminal proceedings are pending, but such stays are never granted when the witness is only under the threat of criminal charges.
Third, once asserted by a party, the privilege cannot be subsequently waived at the whim of that party. In nearly all civil cases, discovery begins with the parties, for obvious reasons. First, parties need to know the opposing party’s version of the facts because it quickly and efficiently narrows and crystalizes the contested factual issues. Second, each party wants to hear the other party’s version of the facts before wasting a lot of time and money conducting discovery from other sources which may be unnecessary. Third, each party wants to pin the other party down before they have a chance to “mold” their testimony to fit the testimony of other witnesses.
These concerns were aptly discussed in S.C. Johnson & Son, Inc. v. Morris, 2010 WI App 6, ¶ 14, 322 Wis. 2d 766, 779 N.W.2d 19, a case in which the defendants continuously invoked the 5th Amendment privilege against self-incrimination until the middle of trial, when they sought to waive the privilege and give testimony on matters previously shielded from discovery. The court talked about the potential abuses arising from the invocation of the 5th Amendment in a civil case.
Timing can mean everything when determining whether the petitioner invoked the privilege primarily to abuse, manipulate or gain an unfair strategic advantage over opposing parties. See id. Invoking the privilege during discovery only to later withdraw the privilege may give the invoking party a decided advantage in that he or she can delay having to answer questions until after having had the opportunity to watch the adverse party’s case develop. It allows the invoking party to conceal information and then tailor the invoker’s own version of the events to meet the opposition’s theory of the case and the evidence garnered in support of it. As one commenter explained:
By forcing plaintiffs to seek evidence from sources other than the defendants and their staffs, it increases plaintiffs’ expenses and delays their progress. Such delays, in addition to their usual benefits, enable invokers siding with the defense to buy time in which to decide whether to waive the privilege and testify. If they do decide to testify and submit to depositions, the delays will have allowed them to see the other evidence the plaintiff has gathered and to tailor their versions of events accordingly.
Robert Heidt, The Conjurer’s Circle—The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062, 1081–82 (1982).
The court refused to allow the defendants to testify to matters which they had previously refused to answer on the grounds of their 5th Amendment privilege.
In conclusion, a witness or party in a civil lawsuit may invoke the 5th Amendment’s protection against self-incrimination, but there are limits.