Nuances Sapidus , You never understand them
Inference to be drawn
While in a criminal procedure, the court must instruct the jury that it cannot draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case, (
Griffin v. California (1965) 80 U.S. 609). In civil cases, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” (
Baxter v. Palmigiano (1976) 425 U.S. 308, 318.)
Under
Baxter, an opposing party can’t simply point to the silence and claim victory in their civil case. A court is entitled to draw adverse inferences against the party who “pleads the Fifth.” As Justice Brandeis said, “Silence is often evidence of the most persuasive character.” (
United States ex rel. Bilokumsky v. Tod (1923) 263 U.S. 149, 153-154.)
The courts of California have held the same. A party claiming a privilege to avoid disclosing facts essential to a claim or defense may be barred from asserting that claim or defense at trial. (
Steiny & Co., Inc. v. California Elec. Supply Co. (2000) 79 Cal.App.4th 285, 292, 93 – by invoking trade secrets privilege to avoid disclosing proprietary information relevant to its damage calculations, plaintiff was barred from proceeding with damages claims;
Fremont Indem. Co. v. Sup.Ct. (
Sharif) (1982) 137 Cal.App.3d 554, 560, – court could order dismissal of suit against fire insurance company where plaintiff invoked 5th Amendment privilege to preclude questioning as to whether he committed arson and started the fire.)
Whereas the privilege may be invoked by a civil litigant. (
Segretti v. State Bar (1976) 15 Cal.3d 878, 126 Cal.Rptr. 793;
Alvarez v. Sanchez (1984) 158 Cal.App.3d 709.) It does not provide for protection against civil penalties, and in a civil case, a witness or party may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it. (
Blackburn v. Superior Court, (1993) 21 Cal.App.4th 414.)
Where a trial court is faced with a case involving a civil defendant who faces possible criminal prosecution involving the same facts as the civil action, accommodation of the various interests is sometimes made to the civil defendant although it is done from the standpoint of fairness, not from any constitutional right. Courts recognize the dilemma faced by a defendant who must choose between defending the civil litigation by providing testimony that may be incriminating on the one hand and losing the case by asserting the constitutional right and remaining silent on the other hand. At the same time, courts must also consider the interests of the plaintiff in civil litigation where the defendant is exposed to parallel criminal prosecution and the interest of the courts in fairly and expeditiously disposing of civil cases. (
Fuller v. Superior Court, (2001) 87 Cal.App.4th 299);
Blackburn v. Superior Court, (1993) 21 Cal.App.4th 414, [discussing the conferring of immunity on the party invoking the privilege];
Pacers, Inc. v. Superior Court, (1984) 162 Cal.App.3d 686,
Alvarez v. Sanchez, (1984) 158 Cal.App.3d 709.)
Plaintiffs are entitled to an expeditious and fair resolution of their civil and the court’s role is to safeguard against gamesmanship and to prevent delay. (Gov. Code, § 68607; Cal. Stds. Jud. Admin., § 2.1(h).) It would be manifestly unfair to plaintiffs if a defendant was able to invoke the privilege against self-incrimination and later elect to waive that privilege and testify at trial about the same matters. “A litigant cannot be permitted to blow hot and cold in this manner. (
Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306 (citing
A & M Records, Inc. v. Heilman, supra, 75 Cal.App.3d at p. 566) [“[T]he fact that a man is indicted cannot give him a blank check to block all civil litigation on the same or related underlying subject matter. Justice is meted out in both civil and criminal litigation . . . .” ]
Added to the mix, of course, is the interest of the courts in fairly and expeditiously disposing of civil cases, and in efficiently utilizing judicial resources”…. “However, courts are guided by the strong principle that any elapsed time other than that reasonably required for pleadings and discovery “is unacceptable and should be eliminated. Courts must control the pace of litigation, reduce delay, and maintain a current docket so as to enable the just, expeditious, and efficient resolution of cases.
(
Fuller,
supra, at 306-307.)
In
Fuller, the issue concerned whether the deposition of several security guards accused of beating the plaintiffs could go forward. The defendants contended that the depositions should not go forward because the security guards faced potential criminal prosecution and requested the trial Court stay the civil proceedings. The
Fuller Court disagreed, writing:
The depositions should proceed. If the security guards choose to invoke their right against self-incrimination with respect to particular questions, then they should do so at that time. This will provide the trial court with a clear record upon which to base a ruling about whether the constitutional privilege is implicated. Once that determination has been made, the trial court will be in a better position to exercise its discretion and fashion a procedural ruling that can accommodate the various interests of the parties and of the judicial system
.
(
Id., at pp. 309-10.)
A plaintiff may seek a protective order prior to trial to bar defendant from testifying to such matters when the case comes to trial. (
Pacers, Inc. v. Sup.Ct. (
Needham) (1984) 162 CA3d 686, 688-689, 208 CR 743, 745.) In
Pacers, the appellate court reversed the trial court’s order barring defendant from testifying and staying the case until the criminal statute of limitation passed.
But preclusion of testimony is only one tool available to the trial court in fashioning a fair resolution for the competing interests involved (including plaintiff’s interests). To facilitate discovery, the court may grant the defendants immunity against use of their deposition answers or evidence derived from these answers in any criminal prosecution. (
Fuller, supra, at 308-310; see also
People v. Sup.Ct. (
Kaufman) (1974) 12 Cal.3d 421, 428-429, – court in consumer fraud action could compel deposition after granting deponent immunity against criminal prosecution based on use of information disclosed in deposition or facts derived therefrom.)
Alternatively, the court may stay discovery until disposition of any pending criminal proceedings or until the statute of limitations has run on criminal prosecution, so that defendant can no longer claim a 5th Amendment privilege. (
Pacers, Inc., supra, 162 Cal.App.3d at 689, 208 CR at 745-746 – depositions postponed for one year, at which time criminal prosecution would be barred. Such a stay is discretionary; defendant has no right to a blanket stay on 5th Amendment grounds.
Klein v. Sup.Ct. (
Thomas) (1988) 198 Cal.App.3d 894, 905, see
Avant! Corp. v. Sup.Ct. (
Nequist) (2000) 79 Cal.App.4th 876, 885.)
And a stay is not favored where the statute of limitations on criminal prosecution has years to run. (
Fuller, supra, 87 Cal.App.4th at 309.)
To avoid a party testifying at trial on matters as to which it had previously asserted the privilege, the court may impose a pretrial deadline for any waiver of the privilege. The deadline should allow sufficient time for the opposing party to conduct depositions and other necessary discovery. (
Fuller, supra, 87 Cal.App.4th at 310) However, the 5th Amendment privilege rarely extends to demands for documents or records voluntarily prepared (no “testimonial compulsion”), even if the contents are incriminatory – e.g., business records of a sole proprietor showing illegal transactions. (See
United States v. Doe (1984) 465 US 605, 610, 104 S.Ct. 1237, 1241.)
Yet, the privilege may apply where production of the documents would itself be “testimonial” and incriminatory – e.g., where by producing the documents sought, a party would effectively admit their existence and authenticate them as his or hers, thus supplying a link in the chain of evidence needed for prosecution. (
Ibid.)
When the records are required by law, there is no 5th Amendment protection when sought by a regulatory agency responsible for enforcing that law. (E.g., Lab.C. § 1174 requires employers to maintain wage and hour records for inspection by Labor Commission.). The State’s need to verify compliance with valid police power regulations outweighs concerns re implicating the records-keeper in criminal conduct. (
Craib v. Bulmash (1989) 49 Cal.3d 475, 489.) This results in a situation where State agencies can enforce their regulations by criminal prosecutions based wholly on compelled self-incrimination!
