By Michael J. Spithogiannis, Esq. and Floyd G. Grossman, Esq.
Among the inalienable rights scrupulously protected is the privilege against self-incrimination. The Fifth Amendment of the United States Constitution states that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . .”¹ The United States Supreme Court has ruled that the Fifth Amendment privilege is not only applicable to criminal proceedings, but “can be asserted in any proceeding, civil or criminal, . . . and it protects against any disclosures the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”²
Whether to remain silent in connection with a criminal case seems clear-cut. But whether to do so in a civil case requires a thorough understanding of its implications. In a civil suit, the privilege against self-incrimination is often at odds with the obligation to disclose information to the other side.
Fifth Amendment issues can arise in connection with pre-trial discovery and post-judgment collection proceedings, when it is not so clear that the privilege could or should be asserted.
Pre-trial discovery.
The right to compel a party in a civil case to appear for a deposition under oath or produce documents is, with few exceptions, well-established. Article 31 of New York’s Civil Practice Law and Rules (“CPLR”), the statute governing procedure in civil cases, compels “full disclosure of all matter material and necessary in the prosecution or defense of an action. . . .”³ To facilitate this mandate, courts are empowered to supervise discovery proceedings. Invariably, civil courts not only make rulings compelling depositions or production of documents, but also rule on instances where a party seeks to avoid disclosure on Fifth Amendment grounds.⁴
CPLR §4501 provides that witnesses in a civil action are not required to answer questions that will tend to incriminate them. That said, refusing to provide discovery in a civil case on Fifth Amendment grounds has consequences.
If a defendant remains silent in a criminal case, no negative inference may be drawn from the refusal to testify. It is always up to the prosecution to prove guilt beyond a reasonable doubt. In a civil case, on the other hand, an adverse inference may be drawn against a party who refuses to testify on Fifth Amendment grounds.⁵ This means that a judge or jury may consider the refusal to testify in assessing the strength of the evidence offered by the opposing party.⁶ Moreover, unlike a criminal case, blanket refusals to answer questions in a civil action will not be permitted absent unique circumstances, and may only be asserted where there is reasonable cause to fear self-incrimination from a direct answer.⁷ The witness who asserts the privilege is required to justify his or her silence.⁸ To effectively invoke Fifth Amendment protections in a civil case, the witness has the burden to make particularized objections to each discovery request, and demonstrate that the evidence sought will either prove a crime or provide the source from which evidence of its commission might be found.⁹
Therefore, merely invoking the privilege is generally insufficient to preclude all discovery in a civil case.¹⁰ For example, even though a party in a civil case has the right to assert the privilege in the context of a deposition, it may only be asserted on a question-by-question basis; the testimony cannot be prevented altogether.¹¹ Even if criminal prosecution is pending, a witness is not entitled to stay the civil action until the criminal case is decided.¹² In addition, asserting the privilege in a civil case does not relieve that party of his or her own evidentiary burden, or afford any protection against a failure to submit evidence. The plaintiff is left to choose between, on the one hand, remaining silent and risk jeopardizing the case;¹³ and, on the other, presenting evidence that may constitute a waiver of the privilege, and opening the door to incriminating evidence.¹⁴
Enforcement proceedings.
New York’s policy is to put no obstacle in the path of one seeking enforcement of a valid judgment.¹⁵ Enforcement proceedings, also referred to as supplementary proceedings, are civil proceedings to which a judgment debtor may be subjected. Under New York law, supplementary proceedings aid in identifying and locating assets to satisfy a judgment and offer creditors tools for this purpose.¹⁶
If the judgment creditor has some knowledge of who may have possession of property subject to collection, the CPLR permits service of restraining notices to prevent dissipation of the assets until they can be turned over in whole or partial satisfaction of the judgment. As is often the case, however, a judgment creditor has little or no idea where money or other assets are hidden. To address this problem, a judgment creditor can compel disclosure of all information relevant and material to the location of hidden assets. A judgment creditor has the power to issue subpoenas compelling the judgment debtor to appear for a deposition, produce documents for examination, or disclose information in writing and under oath.
Endemic to enforcement proceedings, however, is a judgment-debtor’s resistance to paying the judgment and may involve unlawful or even criminal disposition of assets to avoid execution. Consequently, during enforcement proceedings, it may become apparent that disclosure of information by a judgment debtor could be incriminating.
The CPLR attempts to strike a balance between protection against self-incrimination and disclosure of information regarding a debtor’s assets. If the danger of prosecution is eliminated, the witness may be compelled to give testimony and produce evidence that might otherwise be incriminating. To facilitate collection of money judgments, civil courts are authorized to grant immunity from criminal prosecution to any witness for giving testimony or evidence in an enforcement proceeding relating to disposition of property in which the judgment debtor has an interest, provided any interested district attorney is given 24-hours’ notice.¹⁷ Once immunity is granted, the Fifth Amendment is not a basis for withholding evidence.
Conclusion.
The Fifth Amendment privilege against self-incrimination is fundamental, and usually arises in the context of criminal investigations. There are instances, less obvious, where an individual must consider whether testimony or production of evidence may open the door to criminal prosecution.
A clear understanding of the nature and scope of the underlying legal proceeding and the consequences of providing testimony or producing evidence is essential. A thorough and candid discussion with counsel about these issues is crucial to protecting one’s inalienable privilege against self-incrimination.
Michael J. Spithogiannis, Esq. and Floyd G. Grossman, Esq. each have over 35 years’ experience litigating commercial and real-property disputes in state and federal courts throughout New York.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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¹U.S. Const. amend. V.²Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (emphasis added). See Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).³CPLR §3101(a).⁴See Bank of Crete v. Koskotas, 1989 WL 46587 (S.D.N.Y. 1989).⁵Marine Midland Bank v. John E. Russo Produce Co., 50 N.Y.2d 31 (1980). ⁶El-Dehdan v. El-Dehdan, 114 A.D.3d 4 (2d Dep’t 2013), aff’d, 26 N.Y.3d 19.⁷Marine Midland Bank v. John E. Russo Produce Co., supra; Matter of Astor, 62 A.D.3d 867, 869 (2d Dep’t 2009); Wenham Realty Corp. v. Janoff, 1994 WL 16856431 (Sup.Ct. N.Y.Co. 1994).⁸Matter of Astor, 62 A.D.3d 867, 869-70 (2d Dep’t 2009).⁹State v. Carey Resources, Inc., 97 A.D.2d 508 (2d Dep’t 1983).¹⁰Spencer v. City of Buffalo, 172 A.D.3d 1916 (4th Dep’t 2019).¹¹Matter of Schwab, 233 A.D.2d 732 (3d Dep’t 1996); Wenham Realty Corp. v. Janoff, 1994 WL 16856431 (Sup.Ct. N.Y.Co. 1994).¹²Spencer v. City of Buffalo, supra; Stuart v. Tomasino, 148 A.D.2d 370, 373 (1st Dep’t 1989).¹³Federal Chandros, Inc. v. Silverite Construction Co., Inc., 167 A.D.2d 315 (1st Dep’t 1990), app. dis., 77 N.Y.2d 893; Laverne v. Incorporated Village of Laurel Hollow, 18 N.Y.2d 635 (2d Dep’t 1966); Levine v. Bornstein, 13 Misc.2d 161 (Sup.Ct. Kings Co. 1958), aff’d, 7 A.D.2d 995 (2d Dep’t), aff’d, 6 N.Y.2d 892.¹⁴Access Capital, Inc. v. DeCicco, 302 A.D.2d 48 (1st Dep’t 2002).¹⁵U.S. Bank National Association v. APP International Finance Co., B.V., 100 A.D.3d 179, 183 (1st Dep’t 2012).¹⁶Id.¹⁷CPLR §5211.