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Can’t Shake the Shackles

Mon, 09/25/2017 - 10:07 -- admin25

by Sam Johnson

The U.S. Constitution and the Texas Constitution guarantee a criminal defendant protection from being compelled to be a witness against himself or herself. U.S. Const. amend. V; Tex. Const. art. I, §10. The plain language of these documents doesn’t reference civil cases, however, SCOTUS long ago held that the privilege “applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.” McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). The Texas Court of Criminal Appeals agrees, stating that “the nature of the protection goes to the questions asked, not the proceeding itself.” Butterfield v. State, 992 S.W.2d 448, 449 (Tex. Crim. App. 1999).

Several obstacles present themselves, though, in asserting 5th Amendment rights in civil cases:

Timing. Spotting applicability of the privilege early on is crucial, because once a defendant has relayed part of the facts of the allegedly criminal transaction, the privilege is waived. See Draper v. State, 596 S.W.2d 855, 857 (Tex. Crim. App. 1980). This can be a challenge, as the pending criminal investigation or case may not be known even to the defendant, let alone their civil attorney. Where injunctive relief is sought, for example, the case may move too quickly for counsel to recognize the need to assert the privilege.

Individuals vs. Entities. In various cases, discoverable documents may belong to an entity rather than to the defendant(s) individually. However, the privilege is a “purely personal one,” and does not apply to entity records and documents. Bellis v. US, 417 U.S. 85, 90 (1974). At the same time, though, an individual retains the right to refuse to answer questions on behalf of the company when doing so would put them in criminal jeopardy.

Adverse Inference Rule. Unlike in criminal cases, “it is constitutionally permissible to draw an adverse inference from a party’s invocation of the [5th] Amendment in a non-criminal proceeding.” Baxter v. Palmigiano, 425 U.S. 308 (1976). In other words, the judge may instruct the jury to infer that the defendant’s testimony would be harmful to his/her defense in the civil case. Even though assertion of the privilege cannot be the sole basis for liability, and the plaintiff retains the burden of proof, a jury could conceivably run with adverse inference instruction to find liability.

Practical Matters. Otherwise mundane litigation procedures can become landmines where parallel criminal and civil proceedings are pending.

Answer. An unverified answer signed only by counsel does not waive the privilege, whereas a verified denial signed by the defendant can be deemed a waiver as to the facts relating to the defense.

Discovery. The privilege must be asserted every time—in written discovery and in depositions. In deposition, the examining attorney must ask every question they have, leaving the witness’s attorney to instruct not to answer and assert the privilege repeatedly. If the criminal proceeding is resolved before the civil case is, the party-witness should amend discovery responses and offer another, curative deposition to weaken a request an adverse inference instruction. A defendant can serve discovery without waiving the privilege, but jurisprudence disfavors a plaintiff from bringing suit and then hiding behind the privilege in discovery.

Abatement. A parallel criminal proceeding is not usually sufficient to justify abating a civil case, but abatement should be sought right away.

Motion to Seal. Texas strongly favors open courts, and matters touching public concern—such as criminal and related proceedings—typically will not be sealed.

Criminal Defense Counsel. Civil counsel and criminal counsel must work in conjunction to ensure that no criminal liability is created in the civil case and, to the extent possible, vice versa. A guilty plea is an admission by a party opponent, but pursuant to Tex. R. Evid. 410, a plea of nolo contendere is inadmissible in a civil case. Still, civil counsel needs to know what type of documents and admissions are necessary to effect the no contest plea to try and ward off harmful admissions in the civil case. At the end of the day, though, most clients would much rather face a civil judgment than jail time.

By recognizing the overlap and the impact each proceeding may have on the other, civil counsel can be a key player in both matters. These considerations should be the subject of frequent, regular, and documented conversations with your client as soon as the need becomes evident.

Sam Johnson is an attorney at Rosenberg, Johnson & Sparks, PLLC. He can be reached at

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