INVOKING FIFTH AMENDMENT TOUGH CHOICE FOR DEFENDANT

I recently had the surprising experience of having a witness invoke
his privilege against self-incrimination under the Fifth Amendment in
response to a question posed in a deposition of a civil litigation.
The question was whether that witness ever violated certain laws
pertaining to illicit drug use. That an individual would elect not to
answer that question was not the surprise; rather, it was the fact
the witness was the chairman of the board of directors of a publicly
regulated company.

The Fifth Amendment provides: "No person shall . . . be compelled to
be a witness against himself." It is among the earliest rights
guaranteed by the Bill of Rights. In criminal cases, an accused is
protected from being called as a witness by the prosecution. Often,
the prosecution will not know whether the defendant intends to
testify until the defense begins its case. And it is improper for the
prosecution to demand a defendant take the stand in order to invoke
the fifth. It has at times been found to be prosecutorial misconduct
if a prosecutor calls a witness knowing they intend to claim the
privilege, merely for the dramatic effect on the jury.

No Adverse Effect

If a defendant in a criminal case elects not to testify, the judge
will inform the jury that no adverse inference can be drawn from
that. Criminal convictions have been reversed on appeal when
prosecutors make comments that highlight a defendant's election to
not testify.

When a witness, other than the accused, invokes the fifth, there are
different rules. In that instance, the judge can inform the jury they
may draw the inference had the witness answered the question, the
answer would have been adverse to the witness' interests.

We've seen the invocation of the privilege in proceedings before
Congress or dramatized in the movies where the witness intones, "I
refuse to answer on the grounds that it may tend to incriminate me."
A simple statement to invoke the privilege is all that is really
necessary. They cannot be challenged to explain why the answer may be
incriminating.

Inquiring would expose the very facts the witness believes are
incriminating. Thus, a witness who chooses to stand behind the
privilege has the unfettered discretion to do so without having to
provide an explanation.

Adverse Effect

In a civil case, when any witness invokes the privilege, it does give
rise to an adverse inference. Jurors can consider that inference in
the nature of a positive response to the questions and that adverse
inference can stand as proof of the very point the witness declined
to address.

During the recent, highly publicized trial in Waterbury during which
former developer Alex Conroy was suing Bridgeport and convicted
former Mayor Joe Ganim, among others, Ganim was deposed on videotape
from his prison in Fort Dix, N.J. He elected to invoke the fifth
rather than answer questions from Conroy's lawyers. Although nearly
five years into his nine-year sentence, he has appealed his
conviction to the U.S. Supreme Court. On the chance that appeal may
lead to a reversal, he elected not to answer questions in the
deposition. Had he given answers that could be deemed incriminating,
those questions and answers could be admitted into evidence in any
subsequent prosecution, including a retrial if his conviction
ultimately is overturned.

Conroy's lawyers did not merely have to ask him whether he intended
to answer any questions. Instead, they put to him all of the
questions they sought answers to, requiring him to invoke the
privilege to every question. At the trial, that videotape was played
and the jury was informed they could draw an adverse inference to
every question he invoked the privilege to as a response. Requiring
the witness to invoke over and over again has a compelling and
dramatic effect on the jury.

This week, the jury found Ganim liable for civil damages on a claim
of fraudulent misrepresentation. Ganim's invocation of the privilege
clearly aided the plaintiff in proving his lawsuit.

Often a defendant in civil litigation has to make the difficult
choice between answering, and thus exposing himself to prosecution
based on his answers, or refusing to answer, exposing himself to a
civil money judgment.

That choice will always be made in favor of protecting liberty rather
than assets.