Leanne Walters v. Richard Snyder ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0236p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
IN RE: FLINT WATER CASES.
│
_________________________________________ │
LEE-ANNE WALTERS, et al., │
Plaintiffs, │
│
│
E.S.; A.T.; R.V.; D.W., > Nos. 22-1353/1355/1357/1358/1360
│
Plaintiffs-Appellees,
│
│
v. │
│
RICHARD DALE SNYDER (22-1353); DARNELL │
EARLEY (22-1355); RICHARD BAIRD (22-1357); │
HOWARD D. CROFT (22-1358); GERALD AMBROSE │
(22-1360), │
│
Defendants-Appellants, │
│
VEOLIA NORTH AMERICA, LLC; VEOLIA NORTH │
AMERICA, INC.; VEOLIA WATER NORTH AMERICA │
OPERATING SERVICES, LLC; LOCKWOOD, ANDREWS │
& NEWMAN, P.C.; LOCKWOOD, ANDREWS & │
NEWMAN, INC.; LEO A. DALY COMPANY, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.
No. 5:17-cv-10164—Judith E. Levy, District Judge.
Argued: July 28, 2022
Decided and Filed: November 8, 2022
Before: MOORE, GRIFFIN, and THAPAR, Circuit Judges.
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 2
_________________
COUNSEL
ARGUED: Charles R. Quigg, WARNER NORCROSS + JUDD, LLP, Grand Rapids,
Michigan, for Appellant Richard Snyder. Juan A. Mateo, Detroit, Michigan, for Appellant
Darnell Earley. Sarissa K. Montague, LEVINE & LEVINE, Kalamazoo, Michigan, for
Appellant Richard Baird. Alexander S. Rusek, RUSEK LAW PLLC, Lansing, Michigan, for
Appellant Howard D. Croft. William W. Swor, WILLIAM W. SWOR, Detroit, Michigan, for
Appellant Gerald Ambrose. Minh Nguyen-Dang, MAYER BROWN LLP, Washington, D.C.,
for Veolia Appellees. S. Vance Wittie, FAEGRE DRINKER BIDDLE & REATH, LLP, Dallas,
Texas, for Appellees Lockwood, Andrews and Newman, Inc. and Leo A. Daly Company.
ON BRIEF: Charles R. Quigg, Brian P. Lennon, Gaëtan E. Gerville-Réache, WARNER
NORCROSS + JUDD, LLP, Grand Rapids, Michigan, for Appellant Richard Snyder. Juan A.
Mateo, Gerald K. Evelyn, T. Santino Mateo, Detroit, Michigan, for Appellant Darnell Earley.
Sarissa K. Montague, Anastase Markou, LEVINE & LEVINE, Kalamazoo, Michigan, for
Appellant Richard Baird. Alexander S. Rusek, RUSEK LAW PLLC, Lansing, Michigan, for
Appellant Howard D. Croft. William W. Swor, Michael A. Rataj, WILLIAM W. SWOR,
Detroit, Michigan, for Appellant Gerald Ambrose. Minh Nguyen-Dang, Michael E. Lackey, Jr.,
MAYER BROWN LLP, Washington, D.C., Timothy S. Bishop, MAYER BROWN LLP,
Chicago, Illinois, for Veolia Appellees. S. Vance Wittie, FAEGRE DRINKER BIDDLE &
REATH, LLP, Dallas, Texas, Philip A. Erickson, PLUNKETT COONEY, Lansing, Michigan,
for Appellees Lockwood, Andrews and Newman, Inc. and Leo A. Daly Company. Corey Stern,
LEVY KONIGSBERG LLP, New York, New York, for Plaintiff Appellees. Stephanie
Franxman Kessler, PINALES, STACHLER, YOUNG & BURRELL, CO., L.P.A., Cincinnati,
Ohio, William J. Murphy, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland, Bryan M.
Reines, ZUCKERMAN SPAEDER LLP, Washington, D.C., for Amicus Curiae.
GRIFFIN, J., announced the judgment of the court and delivered the opinion of the court
with respect to the Introduction and Parts II, III.G., and IV, and delivered an opinion with respect
to Parts I, III, III.A, B, C, D, E, and F. THAPAR, J. (pp. 42–56), delivered a separate opinion
concurring in part and in the judgment. MOORE, J. (pp. 57–76), delivered a separate opinion
concurring in part and dissenting in part.
_________________
OPINION
_________________
GRIFFIN, Circuit Judge.
One of the fundamental liberties enshrined in the Fifth Amendment to our Constitution is
the right not to be compelled to bear witness against oneself. The inquisitorial abuses of the Star
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 3
Chambers eventually led to the inclusion of this right in our Bill of Rights.1 This bedrock
privilege originates from the maxim “nemo tenetur seipsum accusare,” that “no man is bound to
accuse himself.”2 In the present case, the district court ordered the appellant state officials to
testify at trial—to be witnesses against themselves—despite their invocation of their right against
self-incrimination. According to the district court, appellants “waived”3 their right not to be
witnesses against themselves at trial by voluntarily submitting to a discovery deposition.
We disagree. We conclude that the district court erroneously held that testifying at a
pretrial deposition waives invocation of the privilege at a later trial in the same civil case. In
doing so, we hold that a Fifth Amendment waiver does not extend to trial under these
circumstances. Thus, we vacate and remand.
I.
The present case is another dispute stemming from the infamous Flint Water Crisis, the
events of which are well known and have been well documented. See, e.g., In re Flint Water
Cases, 960 F.3d 303, 311–21 (6th Cir. 2020), and Mason v. Lockwood, Andrews & Newman,
P.C., 842 F.3d 383, 387 (6th Cir. 2016). In short, as a cost-saving measure, public officials
switched Flint’s municipal water supply from the Detroit Water and Sewage Department to the
Flint River, reviving the previously dormant Flint Water Treatment Plant. Flint residents began
receiving water from the Flint River on April 25, 2014, and residents began complaining of
water that looked, tasted, and smelled foul within weeks. Other severe problems emerged,
including evidence of E. coli contamination in the water, a localized outbreak of Legionnaires’
disease, and a dangerously high lead poisoning rate in children. Without proper corrosion-
control treatment, lead leached from the aging pipes in Flint’s water system into the water. With
a public-health disaster mounting, Flint reconnected to its original water sources in October
1
See generally 8 J. Wigmore, Evidence in Trials at Common Law § 2250, 267–95 (J. McNaughton rev.
1961).
2
Cong. Rsch. Serv., No. 112-9, The Constitution of the United States of America: Analysis and
Interpretation (Centennial Edition) 1484–85 (2012).
3
A “waiver” is generally an “intentional relinquishment or abandonment of a known right or privilege.”
Johnson v. Zerbst, 304 U.S. 458, 464 (1938). More precisely, the district court is relying upon the doctrine of
forfeiture. See infra n.16.
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 4
2015. As we have described elsewhere, the crisis was both predictable and preventable. See
Guertin v. State, 912 F.3d 907, 915 (6th Cir. 2019).
Both criminal and civil proceedings began shortly thereafter. On the civil side, a host of
litigants filed suit, alleging injury from Flint’s contaminated drinking water. This includes
plaintiffs here—four minor children who lived in Flint and suffered lead poisoning, brain
damage, and other injuries after being exposed to lead-contaminated water. The plaintiffs sued
two groups of defendants: “governmental defendants,” i.e., public officials and entities who they
alleged were responsible for the decisions that created the crisis, and “engineering defendants,”
i.e., those firms who were allegedly responsible for administering the Flint Water Plant, using the
river as a source for drinking water, and evaluating the system for public safety. Among those
named as governmental defendants were former Michigan Governor Richard Snyder, former
City of Flint Emergency Managers Gerald Ambrose and Darnell Earley, and former Flint
Director of Public Works Howard Croft (“appellants” collectively4), and named as engineering
defendants were Veolia North America (“Veolia”5) and Lockwood, Andrews, and Newman, P.C.
(“Lockwood”; “appellees” collectively).
The pending cases were largely consolidated in the Eastern District of Michigan. The
district court created a bellwether trial process to manage the litigation—the first was to begin in
June 2021 (though it did not actually begin until February 2022), with additional trials following
in October 2023 and January 2024. It also established a coordinated discovery process, the
purpose of which was to “limit duplication in the discovery processes.” As it pertained to the
coordinated depositions, the district court allowed the plaintiffs to depose witnesses (including
the governmental defendants) only once in anticipation of the pending trials.
The criminal process was also underway during this period. In 2016, Michigan’s then-
Attorney General, Bill Schuette, appointed a Special Prosecutor for criminal investigations
related to the Flint Water Crisis. See Sherrod, Teed, Vanderhagen and Ware v. VNA, No. 5:17-
4
Snyder’s former adviser Richard Baird was not named as a defendant, but is an appellant here because he
too received a subpoena to testify and now seeks to invoke his privilege against self-incrimination.
5
Veolia North America consists of Veolia North America, LLC, Veolia North America, Inc., and Veolia
Water North America Operating Services, LLC. We refer to it in the singular for ease of reference.
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 5
cv-10164-JEL-KGA, 2022 WL 834009, at *1 (E.D. Mich, March 21, 2022). Ambrose, Earley,
and Croft, but not Snyder or Baird, were later indicted on several charges connected to the crisis.
But things changed after the 2018 election. Michigan’s new Attorney General, Dana Nessel,
appointed a new Solicitor General and assigned lead of the criminal investigations to her.
Shortly thereafter, all pending criminal charges, including those against Ambrose, Earley, and
Croft, were dismissed without prejudice. The Solicitor General had “immediate and grave
concerns about the investigative approach” taken by the Special Prosecutor and his office, citing
alleged links between the investigators and the private law firms representing government
agencies and individuals, including Snyder. She announced that her team would identify and
pursue “additional individuals of interest” related to the crisis.
In September 2019, Earley, Ambrose, and Croft moved for a protective order in the civil
litigation after their initial criminal charges were dismissed but prior to sitting for any
depositions. They contended that the district court should delay any depositions or written
discovery orders pertaining to them until the applicable criminal statute of limitations expired in
May 2020 or, alternatively, seal the deposition transcripts and other written discovery. The
district court denied the motion, noting that the three were not currently under indictment and
that the plaintiffs, district court, and public at large had an interest in proceeding expeditiously.
See In re Flint Water Cases, No. 5:16-cv-10444, 2019 WL 5802706, at *2–3 (E.D. Mich. Nov. 7,
2019).
Thereafter, each of the appellants voluntarily sat for a deposition between May and
September of 2020. Each appellant was represented by counsel at his deposition, but none
invoked the Fifth Amendment privilege against self-incrimination. Sherrod, Teed, Vanderhagen
& Ware, 2022 WL 834009, at *2. Instead, each was examined at great length about his
knowledge of and role in the Flint Water Crisis, and each answered the questions posed to him.
Ambrose, Earley, and Croft later acknowledged that, at the time of those depositions, they
believed that they were likely to face criminal charges again in the future. Snyder and Baird,
though, asserted that they had “no reason to think” that they would face criminal charges, having
not previously been indicted.
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 6
However, criminal investigations into their conduct were progressing. In December
2019, the Michigan Attorney General requested the appointment of a one-man grand jury as
allowed under Michigan law, and a Genesee County Circuit Court Judge was appointed to act as
the jury. See People v. Peeler, ___ N.W.2d ___; 2022 WL 2335397, at *4 (Mich. 2022).
Throughout 2020, the grand jury conducted confidential investigations, and it issued sealed
indictments of each appellant. In March and September of 2020, Earley was indicted on three
counts of felony misconduct in office, and Ambrose was indicted on four counts of felony
misconduct in office. On January 8, 2021, indictments were issued against the other three
appellants. Snyder was indicted on two misdemeanor counts of willful neglect of duty. Baird
was indicted on four felony counts: perjury during an investigative subpoena, misconduct in
office, obstruction of justice, and extortion. Croft was indicted on two misdemeanor counts of
willful neglect of duty. These charges were finally unsealed and announced on January 14,
2021. See Dep’t of the Attorney General, Press Release: Nine Indicted on Criminal Charges in
Flint Water Crisis Investigation, January 14, 2021.6
Back on the civil side, the governmental defendants reached a settlement agreement with
plaintiffs in November 2020. That agreement was preliminarily approved by the district court in
November 2021. In re Flint Water Cases, 571 F. Supp. 3d 746 (E.D. Mich. 2021). As a result,
Snyder, Ambrose, Earley, and Croft, along with other state and municipal individuals or entities,
became non-parties to this civil case. Id. at 757 & n.3.
Veolia and Lockwood, though, continued to actively litigate their liability, seemingly
planning to pin much of the blame on appellants and other public officials at trial. They served
notices of non-parties at fault, asserting that various federal, state, and local officials, including
appellants, were responsible for plaintiffs’ injuries. Veolia then served subpoenas on appellants,
calling them to testify at the forthcoming first bellwether trial. Appellants moved to quash the
subpoenas, contending that they could, and would, invoke their Fifth Amendment privilege
against self-incrimination. They asserted that the act of answering questions at their depositions
did not waive the privilege at trial, that they were entitled to a blanket invocation of the privilege,
6
Available at: https://www.michigan.gov/ag/news/press-releases/2021/01/14/nine-indicted-on-criminal-
charges-in-flint-water-crisis-investigation (last visited Nov. 2, 2022).
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 7
and that the district court should quash the subpoenas rather than evaluate the privilege on a
question-by-question basis.
The district court, however, denied the motions, concluding that appellants had waived
the privilege at trial by testifying at their depositions. Sherrod, Teed, Vanderhagen & Ware,
2022 WL 834009, at *1. The court initially recognized that, “[b]ecause movants are under
criminal indictment for the very conduct at issue in this civil case, there is no question that they
would ordinarily be entitled to their silence.” Id. at *3. However, they were not entitled to that
silence here because, when a witness testifies, that person waives the privilege as to the subject
matter of their testimony for the remainder of the “proceeding” in which he or she testifies. Id. at
*3–4. It reasoned that a “proceeding” generally means a lawsuit from its beginning to end;
consequently, a deposition is part of the same “proceeding” as the civil trial for which it was
taken. Id. at *4–5. As appellants were thus not entitled to invoke their privilege, the district
court set a hearing to determine the scope of their waivers. Id. at *6–7.
But that hearing, held on March 25, 2022, did not resolve the scope of the waiver. Prior
to the hearing, Veolia and Lockwood submitted outlines on topics that they intended to ask
appellants; those topics largely overlapped with those covered in their depositions. However,
appellants informed the district court that they would still invoke their Fifth Amendment
privilege at trial and would not testify, notwithstanding the court’s order to the contrary. They
further noted their desire for “the Sixth Circuit to look at this” before the parties proceeded.
Therefore, while the court began the hearing by discussing the scope of the waivers, the hearing
soon transformed into, as the district court characterized it, “an oral argument for an
interlocutory appeal.” Appellants then moved the district court to certify such an appeal under
28 U.S.C. § 1292(b). Neither Veolia nor Lockwood opposed the motion.
The district court granted the motion and certified the issue for appeal. Sherrod, Teed,
Vanderhagen & Ware v. VNA, No. 5:17-cv-10164-JEL-KGA, 2022 WL 997261, at *2 (E.D.
Mich. Apr. 1, 2022). In doing so, it noted that “denying interlocutory appeal and requiring the
movants to be held in contempt of court would result in substantial delays in the ongoing
bellwether trial, after which the issue would still reach the Sixth Circuit through an appeal as of
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 8
right.” Id. at *2 n.1. We took the appeal on an expedited schedule. See In re Richard Dale
Snyder, No. 22-0104 (6th Cir. April 26, 2022) (order).
Meanwhile, the civil trial progressed. As expected, each appellant was called to testify,
and each invoked his respective Fifth Amendment privilege. See Ron Fonger, Snyder can refuse
to answer Flint water questions but only in front of jury, MLive.com, June 14, 2022.7 Despite its
order to the contrary, the district court allowed each appellant to do so, playing the video of
each’s deposition instead. See Paul Egan, Jurors in Flint water trial watch Snyder’s 2020 video
testimony: What he said, Detroit Free Press, June 29, 2022.8 The case was submitted to the jury
on July 21, 2022, before we held oral argument on July 28, 2022. After deliberating for three
weeks, the jury informed the court that it could “not come to a unanimous decision” and that
“[f]urther deliberations will only result in stress and anxiety with no unanimous decision without
someone having to surrender their honest convictions, solely for the purpose of returning a
verdict.” After conferring with the parties, the district court declared a mistrial. The district
court has since rescheduled that trial to begin on February 22, 2023.
In one final twist on the criminal side, the Michigan Supreme Court decided People v.
Peeler on June 28, 2022. As part of that case, Nicholas Lyons, another defendant charged in
connection to the Flint Water Crisis, challenged Michigan’s one-man grand jury statute, Mich.
Comp. Laws § 767.4. See 2022 WL 2335397 at *7 & n.2. The Michigan Supreme Court held
that the statute did not authorize a one-man grand jury to issue indictments. See id. at *7–10.
After that opinion was released, appellants announced that they would seek dismissal of all
criminal charges against them because the same one-man grand jury had charged them. See Beth
LeBlanc, Snyder wants Flint charges dropped after high court nixes one-judge grand jury
indictments, Detroit News, June 28, 2022.9 In response, the Solicitor General publicly reiterated
her belief that the “charges can and will be proven in court,” and that her team was both
7
Available at: https://www mlive.com/news/flint/2022/06/snyder-can-refuse-to-answer-flint-water-
questions-but-only-in-front-of-jury.html (last visited Nov. 2, 2022).
8
Available at: https://www freep.com/story/news/local/michigan/flint-water-crisis/2022/06/29/rick-snyder-
deposition-testimony-flint-water-lead-civil-trial/7764878001/ (last visited Nov. 2, 2022).
9
Available at: https://www.detroitnews.com/story/news/local/michigan/2022/06/28/michigan-cant-use-
one-judge-grand-jury-indict-flint-water-case-justices-rule/7710896001/ (last visited Nov. 2, 2022).
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 9
“prepared to move forward” and “committed to seeing this process through to its conclusion.”
SG Hammoud Responds to MSC Ruling in Flint Criminal Cases, Michigan Department of
Attorney General, June 28, 2022.10 The Genesee Circuit Court has since dismissed the charges
against Baird, Ambrose, and Earley, among others, for the reasons stated in Peeler. Beth
LeBlanc, Judge tosses charges against 7 state officials in Flint water crisis, Detroit News,
October 4, 2022.11 The Solicitor General and her prosecution team released a statement shortly
thereafter expressing their “anger and disappointment” at the ruling and reaffirming their
commitment to “exhaust all available legal options” in their “pursuit of justice for Flint,”
including appealing that dismissal. Flint Criminal Prosecution Issues Statement, Michigan
Department of Attorney General, October 4, 2022.12; Flint Water Prosecution Team Announces
Intent to Appeal, Michigan Department of Attorney General, October 25, 2022.13
This brings the case to its current posture.
II.
Before turning to the merits, we must first assure ourselves of jurisdiction. We “have an
independent obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
Given that appellants did not testify at the underlying trial and the case was submitted to the jury,
the specter of mootness has arisen. Indeed, following oral argument, we requested supplemental
briefing from the parties on whether the case was moot. On this discrete issue, appellants and
appellees are in accord—the case is not moot. We agree.
“Article III of the Constitution grants the Judicial Branch authority to adjudicate ‘Cases’
and ‘Controversies.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013). This actual-case-and-
10
Available at: https://www.michigan.gov/ag/news/press-releases/2022/06/28/sg-hammoud-responds-to-
msc-ruling-in-flint-criminal-cases (last visited Nov. 2, 2022).
11
Available at: https://www.detroitnews.com/story/news/politics/michigan/2022/10/04/judge-tosses-
charges-against-7-state-officials-in-flint-water-crisis/69539145007/ (last visited Nov. 2, 2022).
12
Available at: https://www.michigan.gov/ag/news/press-releases/2022/10/04/flint-criminal-prosecution-
issues-statement (last visited Nov. 2, 2022).
13
Available at: https://www.michigan.gov/ag/news/press-releases/2022/10/25/flint-water-prosecution-
team-announces-intent-to-appeal (last visited Nov. 2, 2022).
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 10
controversy requirement applies not only at the time the complaint is filed, “but through all
stages of the litigation.” Id. at 90–91 (quotation marks and citation omitted). A dispute no
longer presents a live case or controversy when it becomes moot, i.e., “when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. at 91(citation omitted). “Ultimately, the ‘test for mootness is whether the relief sought would, if
granted, make a difference to the legal interests of the parties.’” Sullivan v. Benningfield,
920 F.3d 401, 410 (6th Cir. 2019) (quoting McPherson v. Mich. High Sch. Athletic Ass’n, Inc.,
119 F.3d 453, 458 (6th Cir. 1997) (en banc)).
Neither party contends that the original, underlying controversy is still “live” in its own
right. Indeed, it is impossible for appellants to be called to testify in the underlying trial because
that trial has ended. Yet we recognize an exception to the mootness doctrine for controversies
that are “capable of repetition, yet evading review.” See Chirco v. Gateway Oaks, L.L.C.,
384 F.3d 307, 309 (6th Cir. 2004). This doctrine applies “only in exceptional situations, and
generally only where the named plaintiff can make a reasonable showing that he will again be
subjected to the alleged illegality.” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Both
appellants and appellees contend that this exception applies because appellants will be called to
testify at the forthcoming (and already scheduled) trials and the time frame for appealing any
motions to quash in these trials would be too short for an appeal to be fully litigated.
Beginning with the “capable of repetition” requirement, a dispute is so capable if “there
is a reasonable expectation that the same complaining party will be subject to the same action
again.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 735 (2008) (citation omitted).
“Recurrence of the issue need not be more probable than not; instead, the controversy must be
capable of repetition.” Barry v. Lyon, 834 F.3d 706, 715 (6th Cir. 2016). When, as here, the
dispute is between two private parties, “the complaining party must show a reasonable
expectation that he would again be subjected to the same action by the same defendant.” Chirco,
384 F.3d at 309. Here, this requirement is comfortably satisfied. Future trials are already
scheduled: a retrial is scheduled to begin in February 2023, along with a class action trial in
October 2023 and another bellwether trial in January 2024. These trials will involve both Veolia
and Lockwood as defendants. Both have repeatedly affirmed their “almost certain[]” intention to
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 11
subpoena appellants to testify again: they contend that appellants were “key officials” involved
in the Flint Water Crisis and “their testimony will be critical to many of the key issues at each
trial.” Appellees’ Joint Supplemental Brief on Mootness, App. R. 55 at 8. Thus, it is not only
possible but probable that the dispute will recur. Cf. Barry, 834 F.3d at 715. Such a dispute will
also involve the same parties because appellees are the parties calling appellants to testify. That
there will be different plaintiffs in the other trials is immaterial as this dispute is between
appellants and appellees, not the plaintiffs.
The “evading review” prong is the crux of our mootness dispute. A dispute evades
review when “the challenged action is in its duration too short to be fully litigated prior to
cessation or expiration.” Davis, 554 U.S. at 735. An action is too short if it is impossible “to
obtain complete judicial review,” including “plenary review” by the Supreme Court. First Nat’l
Bank of Boston v. Bellotti, 435 U.S.765, 774 (1978). See also Shell Offshore, Inc. v.
Greenpeace, Inc., 709 F.3d 1281, 1287 (9th Cir. 2013) (“An action is ‘fully litigated’ if it is
reviewed by this Court and the Supreme Court.”). As to what time frame is “too short” to obtain
full review, the Supreme Court has held that periods of twelve months, Turner v. Rogers, 564
U.S. 431, 440 (2011), eighteen months, First Nat’l Bank, 435 U.S. at 774, and even two years,
Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016), are too short to obtain
complete review.
The time frame here—an appeal of a motion to quash trial subpoenas—is far too short for
the parties to obtain complete review. In this case, appellees issued their trial subpoenas in the
month before trial began in February 2022. The case was submitted to the jury on July 21, 2022,
and a mistrial was declared on August 11, 2022, about six months after trial began. Appellees
further note the time frame for issuing subpoenas is after the district court determines the
genuine issues of material fact for trial, and they assert that this normally occurs in the six
months preceding trial. In either circumstance (subpoenas issued within one month or six
months of the beginning of trial), the Supreme Court would not have a full two years to consider
the case. Cf. Kingdomware, 579 U.S. at 170. But even if appellees had issued their trial
subpoenas immediately after oral argument in this appeal, as was suggested during argument,
that still would not provide enough time. The retrial is scheduled to begin in February 2023; if it
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 12
follows the same time frame as the first trial, it will conclude by August of 2023—less than a
year from now. The next class action trial is then slated to begin in October 2023 and conclude
by January 2024 (when the next bellwether must begin)—providing at most eighteen months
before that trial would conclude. Both instances are “‘in [their] duration too short to be fully
litigated’” and arrive at the Supreme Court “prior to [the subpoena’s] ‘expiration.’” Turner,
564 U.S. at 440 (quoting First Nat’l Bank, 435 U.S. at 774.). Thus, the dispute would still evade
review in those future cases.14
But what about diligence? Though we have not established the exact role diligence plays
in the mootness analysis, we have recognized that a case may be moot if the complaining party
does not act with diligence or expeditiousness. See United States v. Taylor, 8 F.3d 1074, 1076–
77 (6th Cir. 1993) (noting the case did not evade review because the defendants could have
“petitioned this court for a stay” or “refused to comply with the [underlying] order”); United
States v. Cleveland Elec. Illuminating Co., 689 F.2d 66, 68 (6th Cir. 1982) (“Moreover, [the
appellant] could have refused to comply with the order, thereby risking civil contempt but
preserving the issues for appellate review.”). Other circuits similarly recognize that a litigant
cannot claim a case evades review “when he himself has delayed its disposition.” Armstrong v.
F.A.A., 515 F.3d 1294, 1296 (D.C. Cir. 2008). See also Empower Texans, Inc. v. Geren,
977 F.3d 367, 371–72 (5th Cir. 2020). In practice, this means that circuits appear to agree that
parties who “could have but did not file for a stay” cannot claim the “evading review” exception.
Armstrong, 515 F.3d at 1297. See also id. (collecting cases). On the other hand, the circuits are
in less agreement about requests for expedited appeal—some have deemed it relevant, while
others have not. Compare Empower Texans, 977 F.3d at 372 (“Crucially, [the appellant] never
asked this court to expedite its appeal.”), with Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758
F.3d 296, 321–322 (D.C. Cir. 2014) (“In addressing whether a matter can be fully litigated, we
do not consider the availability of expedited review.”).
14
Neither Peeler nor its aftermath change our conclusion. While the indictments against Baird, Ambrose,
and Earley have been dismissed, the Solicitor General has nonetheless vowed “to exhaust all available legal options”
in continuing its prosecution of all appellants. Flint Criminal Prosecution Issues Statement, Michigan Department
of Attorney General, October 4, 2022, available at: https://www michigan.gov/ag/news/press-
releases/2022/10/04/flint-criminal-prosecution-issues-statement (last visited Nov. 2, 2022). The manifest possibility
of criminal charges remains, and, indeed, the prosecution team has since announced their intention to appeal the
dismissal to the Michigan Court of Appeals. Therefore, those developments, by themselves, do not moot this case.
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 13
We have ample reason to conclude that the parties here acted with diligence. Appellants
received their trial subpoenas shortly before trial began, and they moved to quash those
subpoenas shortly thereafter. When the district court denied those motions, appellants requested
an interlocutory appeal and informed the district court that they would risk contempt by not
complying with the order. We view these steps favorably. See Taylor, 8 F.3d at 1076–77;
Cleveland Elec. Illuminating Co., 689 F.2d at 68. Within days of the district court granting leave
to appeal, appellants filed their petitions in this Court and requested an expedited briefing
schedule. All in all, briefing concluded less than two months after the district court initially
denied the motions to quash. This is a far cry from cases like Empower Texans where the
complaining party took months to initiate an action and delayed filing its notice of appeal. See
977 F.3d at 372. And on appeal, the case was set for the first available argument; appellees then
requested an even quicker oral argument schedule or, alternatively, dispensing with argument
entirely. Though we held argument as originally scheduled, that was not due to the parties’ lack
of diligence.15 Regardless of whether appellants needed to seek and obtain expedited review on
appeal, compare Empower Texans, 977 F.3d at 372, with Ralls Corp., 758 F.3d at 321–322, they
did so. In sum, appellants acted diligently, and they have not delayed our disposition of this
case.
But what about a stay? In Taylor, we concluded the case was moot because the parties
could have but failed to seek a stay of the underlying order. See 8 F.3d at 1076–77. At least one
other circuit has held similarly when a party fails to request a stay. See Armstrong, 515 F.3d at
1297. It is undisputed that no party sought a stay of the order denying the motions to quash. But
we conclude that, under the unique and extraordinary circumstances presented here, appellants’
failure to seek such a stay does not moot this case. Appellants would have needed to seek a stay
of the motion to quash, not the trial. See Fed. R. App. P. 8(a)(1)(A) (“A party must ordinarily
move . . . for . . . a stay of the judgment or order of a district court pending appeal.”). But such a
course was wholly unnecessary when the district court functionally stayed the order on its own.
The order never went into practical effect because the district court did not require appellants to
15
Given that oral argument was held as scheduled, appellees’ motion to expedite the appeal, or
alternatively, to dispense with oral argument is denied as moot.
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 14
testify at trial. The purpose of a stay is “to maintain the status quo” pending appellate review of
the dispute. Gilley v. United States, 649 F.2d 449, 453 (6th Cir. 1981). When the district court
did not enforce its own order and did not require appellants to testify, it naturally and sua sponte
preserved the status quo pending appeal. Because of this, the district court’s actions
accomplished the purpose of a stay, rendering a motion for a stay unnecessary.
This conclusion is in accord with both Taylor and other circuits’ caselaw. The thrust of
the stay requirement is to prevent parties from allowing a challenged order go into effect and
complying with it while simultaneously complaining about that order on appeal. When the
complaining party allows the challenged order to run its natural course without complaint,
knowing that the dispute will no longer be live once the order expires, that party disregards the
need for diligence. See Taylor, 8 F.3d at 1076–77 (noting the parties complied with the district
court’s order instead of seeking a stay or refusing to comply with the order); Empower Texans,
977 F.3d at 371 (“Here, there was no order to be stayed, but the relevant point is that a litigant
must use the available tools.”). But in this case, appellants contested the order. At the March 25
hearing, appellants informed the district court they would not comply with the court’s ruling and
would instead risk contempt proceedings; that the district court did not so hold them in contempt
is not their fault. When the parties continued to contest a particular order, and the district court
both functionally stayed that order on its own and permitted an interlocutory appeal, a
complaining party’s failure to pursue an unnecessary stay does not render the dispute moot.
For those reasons, we hold that this case is not moot because its “exceptional situations”
render the dispute “capable of repetition, yet evading review.” Kingdomware Techs., 579 U.S. at
170.
III.
The merits of this appeal require us to confront an issue of first impression: whether a
witness waives his privilege against self-incrimination for purposes of trial by testifying at a
deposition in the same civil case. Appellants argue that the district court erred in holding that
they could not assert their Fifth Amendment privilege at trial. We agree.
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A.
Our caselaw does not set forth a uniform standard of review when addressing Fifth
Amendment privilege cases. On occasion, we have described the privilege as raising “a mixed
question of law and fact;” thus, “we examine the district court’s factual determinations for clear
error and its conclusions of law and applications of law to facts de novo.” United States v. B &
D Vending, Inc., 398 F.3d 728, 733 (6th Cir. 2004) (citing United States v. Grable, 98 F.3d 251,
253 (6th Cir. 1996)). At other times, we have stated that we “review the assertion of a Fifth
Amendment privilege against self-incrimination and its grant or denial for abuse of discretion.”
United States v. Boothe, 335 F.3d 522, 525 (6th Cir. 2003) (citing United States v. Mack, 159
F.3d 208, 217 (6th Cir. 1998)).
Nevertheless, these standards of review are not inconsistent. As recognized in other
evidentiary contexts, decisions reviewed under an abuse-of-discretion standard are “not
inconsistent with an appellate court’s abiding duty to review questions of law de novo or
questions of fact for clear error,” United States v. Gibbs, 797 F.3d 416, 421 (6th Cir. 2015)
(citation and brackets omitted), because an error of law necessarily constitutes an abuse of
discretion, Griffith v. Comm’r of Soc. Security, 987 F.3d 556, 563 (6th Cir. 2021). This case
turns on questions of law: whether the two events are separate proceedings and, consequently,
whether appellants waived their privilege at trial. Therefore, a de novo standard of review is
appropriate here.
B.
We begin with the guiding principles of the privilege against self-incrimination. The
Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a
witness against himself.” U.S. Const. amend. V. Under this “essential mainstay” of our
“accusatorial, not inquisitorial” system of prosecution, the government is “constitutionally
compelled to establish guilt by evidence independently and freely secured, and [it] may not by
coercion prove a charge against an accused out of his own mouth.” Malloy v. Hogan, 378 U.S.
1, 7–8 (1964). It applies to both civil and criminal proceedings, and it protects parties and non-
party witnesses alike. McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). The privilege against
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self-incrimination afforded by the Amendment “must be accorded liberal construction in favor of
the right it was intended to secure.” Hoffman v. United States, 341 U.S. 479, 486 (1951). See
also Estelle v. Smith, 451 U.S. 454, 467–68 (1981) (“The Fifth Amendment privilege is ‘as broad
as the mischief against which it seeks to guard,’ and the privilege is fulfilled only when a
criminal defendant is guaranteed the right ‘to remain silent unless he chooses to speak in the
unfettered exercise of his own will, and to suffer no penalty . . . for such silence.’” (citations
omitted)).
This privilege is not unlimited, for a witness may lose its protection by disclosing
information. A witness must claim the privilege to enjoy its protections, Rogers v. United States,
340 U.S. 367, 370–71 (1951), and he or she “may not testify voluntarily about a subject and then
invoke the privilege against self-incrimination when questioned about the details.” Mitchell v.
United States, 526 U.S. 314, 321 (1999). When the witness testifies, “[t]he privilege is waived
for the matters to which the witness testifies.” Id. The reasons for such a “waiver” rule are
straightforward: the rule rests primarily “on the need to avoid leaving the trier of fact with the
limited version of the relevant information that would be before it if a witness was able to pick at
will the point at which to invoke the privilege.” 1 McCormick on Evid., § 133 (8th Ed. July
2022 Update).16 Allowing self-selected testimony would distort the facts of the case, Rogers,
340 U.S. at 371, and invite a party to “mutilate the truth” it offers to the court, Brown v. United
States, 356 U.S. 148, 156 (1958). In other words, if a witness may “pick and choose what
aspects of a particular subject to discuss,” doing so would inevitably “cast[] doubt on the
trustworthiness of the statements and diminish[] the integrity of the factual inquiry.” Mitchell,
526 U.S. at 322.
16
The term “waiver” here is imprecise as this rule is different from other waiver rules. Generally, a waiver
is an intentional relinquishment of a known right. See Zerbst, 304 U.S. at 464. But in this context, while a witness
must testify voluntarily, that decision need not be “knowing and intelligent.” Garner v. United States, 424 U.S. 648,
654 n.9 (1976). In other words, the “waiver” rule in this context does not require the witness to “have been aware of
or have intended to give up the right to invoke the privilege when questioned about ‘the details.’” 1 McCormick on
Evid., § 133 (8th Ed.). It would be more precise to assert that we are relying on the doctrine of forfeiture. See
United States v. Olano, 507 U.S. 725, 733 (1993) (“[F]orfeiture is the failure to make the timely assertion of a
right.”); Salinas v. Texas, 570 U.S. 178, 190 (2013) (plurality opinion) (“[I]t is settled that forfeiture of the privilege
against self-incrimination need not be knowing.” (emphasis added)). Nonetheless, we continue to use the term
“waiver” because of its widespread use in the Fifth Amendment context.
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When a witness voluntarily waives the privilege by disclosing information, the scope of
that waiver is determined both by the witness’s testimony and the opposing party’s cross-
examination. “The witness himself, certainly if he is a party, determines the area of disclosure
and therefore of inquiry.” Brown, 356 U.S. at 155. If a witness testifies and thereby waives the
privilege, “he is not permitted to stop, but must go on and make a full disclosure.” Rogers,
340 U.S. at 373. Cross-examination is the vehicle by which the full scope of the waiver is
determined—“the breadth of [the witness’s] waiver is determined by the scope of relevant cross-
examination.” Brown, 356 U.S. at 154–55; see also id. at 156 (“[The witness] could not take the
stand to testify in her own behalf and also claim the right to be free from cross-examination on
matters raised by her own testimony on direct examination.” (emphasis added)). Permitting full
cross-examination after a voluntary disclosure of a fact furthers the need for fair and honest fact-
finding, for “[a] witness thus permitted to withdraw from the cross-fire of interrogation before
the reliability of his testimony has been fully tested may on occasion have succeeded in putting
before the trier of fact a one-sided account of the matters in dispute.” Id. at 155.
This waiver is “proceeding” specific, meaning that a waiver applies throughout the
proceeding in which the witness testifies: “It is well established that a witness, in a single
proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-
incrimination when questioned about the details.” Mitchell, 526 U.S. at 321 (emphasis added).17
In that proceeding, use of the privilege is “confined to instances where the witness has
reasonable cause to apprehend danger from a direct answer,” Hoffman, 341 U.S. at 486, as
witnesses are protected only when they are subject “to a ‘real danger’ of further crimination.”
Rogers, 340 U.S. at 374 (citation omitted). See also United States v. LaRiche, 549 F.2d 1088,
1096 (6th Cir. 1977) (“[W]aiver does not occur where further disclosure carries a risk of
incrimination beyond that raised by previous testimony.”). In other words, the “hazards of
incrimination” facing the claimant must be “substantial and ‘real,’ and not merely trifling or
imaginary.” United States v. Apfelbaum, 445 U.S. 115, 128 (1980) (citation omitted). As for
17
The Supreme Court’s focus on the “proceeding” to which a waiver applies is not just a recent
phenomenon. Rather, it has approached Fifth Amendment questions through a “proceeding” lens for over a century.
See, e.g., Boyd v. United States, 116 U.S. 616, 631–35 (1886); Counselman v. Hitchcock, 142 U.S. 547, 563–64
(1892), overruled on other grounds, Kastigar v. United States, 406 U.S. 441 (1972); McCarthy, 266 U.S. at 40.
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secondary or subsequent proceedings, most circuits have held that a waiver in one proceeding
does not constitute a waiver in a second proceeding. See In re Morganroth, 718 F.2d 161, 165
(6th Cir. 1983) (collecting cases). Courts have provided two reasons for this proceeding-specific
rule. First, “conditions might have changed” in the time between the proceedings, “creating new
grounds for apprehension, e.g., the passage of new criminal law.” Id. Second, the “repetition of
testimony in an independent proceeding might itself be incriminating, even if it merely repeated
or acknowledged the witness’ earlier testimony, because it could constitute an independent
source of evidence against him or her.” Id.C.
With that background in mind, we turn to the issue of whether a deposition and a trial are
separate proceedings for Fifth Amendment purposes. This issue raises a threshold question:
what constitutes a single “proceeding” under the Fifth Amendment? We have not resolved this
specific issue, and plenty of “controversy surrounds the effect of testifying at an early stage of
what might be considered a single unit of litigation.” 1 McCormick on Evid., § 133 (8th Ed.).
We must wade into this dispute to determine if a deposition and a later trial in the same civil case
are part of the same “proceeding.”
We begin with Mitchell. There, the defendant pleaded guilty to drug-distribution charges
but “reserved the right to contest the drug quantity attributable” under a separate conspiracy to
distribute charge. 526 U.S. at 317. At the plea hearing, after the government explained the
factual basis for her charges, the district court asked the defendant, “Did you do that?” to which
the defendant responded, “Some of it.” Id. at 318. At the following sentencing hearing, the
district court found that her plea testimony constituted a waiver and sentenced her accordingly.
Id. at 318–19. On appeal, the Supreme Court reversed, holding that the defendant “retained the
privilege at her sentencing hearing.” Id. at 321. The plea inquiry was not a waiver of her
privilege—no cross-examination occurred at the plea hearing and there was little danger that the
court would be misled by the selective disclosure of facts agreed to by the parties. Id. at 322–23.
The Court also extended the rule that “where there can be no further incrimination, there is no
basis for the assertion of the privilege,” to hearings where the conviction has already been fixed.
Id. at 326. Despite the plea, a possibility of further incrimination still existed for the defendant,
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including the severity of her punishment. Id. at 326–27. And the Court confirmed that this rule
would apply “whether or not the sentencing hearing is deemed a proceeding separate from the
[plea] hearing, an issue we need not resolve.” Id. at 327.
Mitchell assists with but does not resolve the question presented here. It explicitly
declined to resolve whether a plea hearing was a separate “proceeding” from a subsequent
sentencing hearing. Instead, it concluded that the defendant’s statements at the plea hearing did
not constitute a waiver in the first instance. Id. at 325. It provided several reasons for this,
largely related to the purpose of and reason for each hearing. For one, the court and parties at a
plea hearing are not necessarily concerned with fact-finding; rather, as evident from the lack of
cross-examination, “[t]he purpose of a plea colloquy is to protect the defendant from an
unintelligent or involuntary plea.” Id. at 322. This purpose diminishes the risk that a selective
disclosure will distort the facts. Thus, the thrust of Mitchell’s holding was that the purposes of
and reasons for the defendant’s disclosure at the first hearing did not support a waiver of the
privilege, regardless of whether plea and sentencing hearings were separate “proceedings.” Such
reasoning does not resolve our issue—appellants do not disagree that they waived the privilege at
their depositions; rather, they argue that this waiver does not carry over to trial. But Mitchell is
still instructive here: its purpose-based analysis supports assessing whether a deposition and trial
have a shared purpose. And Mitchell demonstrates the importance of cross-examination in the
waiver process. The lack of cross-examination at a plea colloquy was a factor that strongly
demonstrated no waiver had occurred. Id. at 322–23.
No case from our circuit addresses the exact scenario presented here; the most analogous,
In re Morganroth, addressed testimony in two clearly separate proceedings. 718 F.2d at 163.
There, the witness was charged in federal court with fraud; he was later deposed and testified in a
separate state court civil action. Id. at 163–64. He was acquitted of the criminal charges, but
asserted his Fifth Amendment privilege in a later federal civil case to avoid perjuring himself.
Id. On appeal, we held that the witness could assert the privilege in the federal civil action but
that he must also identify before the district court the nature of the charge for which he feared
prosecution. Id. at 166–67. We declined to reach the issue of whether a waiver in one
“proceeding” carries over to another, as we found it inapplicable “where a fifth amendment
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privilege is asserted solely because the witness alleges he is apprehensive of providing
incriminating evidence in regard to a possible perjury charge stemming from responses in an
earlier proceeding under oath.” Id. at 165. “Once a witness has testified under oath, he risks the
possibility of perjury charges in addition to any risk he may face for prosecution for non-perjury
offenses suggested by his testimony.” Id. at 166. But we concluded that the witness had not
made a sufficient showing to the district court that would establish the foundation for asserting
the privilege because his explanations to the court were not enough to demonstrate a “real
danger” of prosecution for perjury. Id. at 167–70.
Morganroth did not address whether a deposition and a trial in the same case are separate
proceedings, and it sidestepped the issue of whether a waiver in one proceeding carries over to
another. Consequently, like Mitchell, it does not resolve our case. But its conclusion that
perjury constituted an independent basis for asserting a privilege is instructive. Like the
defendant in Morganroth, appellants have claimed that they could easily be subjected to criminal
prosecution for perjury arising out of potential inconsistencies in testimony. “When a witness is
asked a question in a subsequent proceeding, the answer to which could show that he has already
committed the crime of perjury in a prior proceeding, his refusal to answer is permissible almost
by the definition of self-incrimination.” Morganroth, 718 F.2d at 166. But because Morganroth
only addressed two separate proceedings, we must still determine whether a deposition and trial
are indeed separate.
Because no binding precedent addresses this issue, we move to other sources, turning
first to treatises on the subject. The current version of McCormick on Evidence describes that,
though dispute exists about waiver at different stages of one case, “[m]ost courts hold that
testimony at a grand jury proceeding or other pretrial event or hearing does not preclude a
witness from invoking the privilege at trial.” 1 McCormick on Evid., § 133 (8th Ed.) (footnotes
omitted). An earlier edition describes this point in greater detail, explaining:
In theory, a witness should not ordinarily be subject to additional legal detriment
by being required to repeat testimony previously given. But in the excitement and
confusion that may be generated by the second appearance, the witness might
make admissions beyond those previously made. Reaffirming earlier self-
incriminating admissions may encourage prosecution as a practical matter.
Testimony during the second appearance might . . . increase the risk of liability
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for perjury based on the first appearance. The traditional rule that a witness’s loss
of the privilege by testifying lasts only during that “proceeding” in which the
witness testified is consistent with the spirit of the privilege.
1 McCormick on Evid., § 140, p. 528 (J. Strong 4th Ed. 1992) (footnotes omitted). Another
treatise describes similarly:
The waiver involved is limited to the particular proceeding in which the witness
volunteers the testimony or the accused takes the stand. . . . His voluntary
testimony before a coroner’s inquest, or a grand jury, or other preliminary and
separate proceeding, e. g., in bankruptcy, is therefore not a waiver for the main
trial.
8 J. Wigmore, Evidence in Trials at Common Law § 2276, 470-72 (J. McNaughton rev. 1961).
See also 81 Am. Jur. 2d Witnesses, § 151 (August 2022 Update) (“[T]he waiver of the privilege
against self-incrimination at one stage of a proceeding is not a waiver of that right for other
stages.”).
These treatises strongly support the position that a deposition is a separate “proceeding”
from a trial. They describe that a “proceeding” is the specific hearing in which a witness
testifies. That would support limiting the waiver to a single testimonial event: in this case,
appellants’ waiver would cover only their deposition testimony. As McCormick explains, this is
rooted in one of the purposes of the waiver rule: repetition of testimony may encourage
prosecution and increase the risk of perjury. This, in turn, also supports applying Morganroth’s
perjury discussion here.18
With that background, we turn next to caselaw to examine other scenarios where courts
have addressed the Fifth Amendment privilege at different stages of one case. We begin by
18
Though not a treatise, the district court found Black’s Law Dictionary persuasive in outlining the
“common meaning” of “proceeding.” See Sherrod, Teed, Vanderhagen and Ware, 2022 WL 834009 at *4–5.
Generally, dictionaries are used in determining the “ordinary meaning” of undefined terms in statutes, court rules,
sentencing guidelines, and the like. See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566–69 (2012); A. Scalia
& B. Garner, Reading Law: The Interpretation of Legal Texts 69–77, 415–24 (Thompson/West 2012). They are
used in interpreting common-law doctrines in limited circumstances, such as understanding the historic context for a
particular doctrine. See Giles v. California, 554 U.S. 353, 358–61 (2008). Nevertheless, Black’s does not provide
support for the district court’s one-sided interpretation. While it describes that a “proceeding” may be “[t]he regular
and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry
of judgment,” i.e., a case, it also states that “proceeding” may be “[a]n act or step that is part of a larger action,” i.e.,
a hearing. Proceeding, Black’s Law Dictionary (11th ed. 2019). In other words, Black’s supports both parties’
interpretations and, thus, is not useful here.
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acknowledging two competing decisions identified by the parties and the district court. First, in
State v. Roberts, the New Hampshire Supreme Court held that a deposition and trial were
separate proceedings. 622 A.2d 1225, 1235–36 (N.H. 1993). The deposition testimony did not
waive the privilege for purposes of trial—while it is “hornbook law that the waiver . . . is limited
to the particular proceeding in which the witness appears,” that “majority rule preserves a
witness’s right to assert the privilege in subsequent, distinct stages of a single proceeding.” Id. at
1235 (citing United States v. Trejo–Zambrano, 582 F.2d 460, 464 (9th Cir.); United States v.
Johnson, 488 F.2d 1206, 1210 (1st Cir. 1973); and 1 McCormick on Evid., § 140 (4th Ed.)). The
court reasoned that limiting the waiver to the deposition furthers the “spirit of the privilege”
because it “recognizes that a witness’s admissions in a second appearance may exceed those
previously made.” Id. But in Moser v. Heffington, the Court of Appeals of Maryland held that
deposition testimony constituted a waiver for trial: “[f]or Fifth Amendment purposes, a
deposition and the trial in the same matter are stages of the same proceeding.” 214 A.3d 546,
557–59 (Md. 2019) (citing United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir. 1990), and
Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1081 (10th Cir. 2009)). By
testifying at her deposition, the witness waived the privilege “at least to the extent necessary for
petitioners to cross-examine her on it.” Id. at 558. She could not invoke the privilege merely
because additional testimony would create “new grounds for apprehension;” rather, “[i]t should
be clear” to one giving a deposition that “any testimony that she gave might tend to subject her to
criminal prosecution, especially since the police investigation had not been closed.” Id.
To be sure, Roberts and Moser offer insight into how two other courts have addressed
this exact situation. One discusses how the purpose or “spirit” of the privilege would best be met
by limiting the “proceeding” to the deposition itself, while the other highlights that “any
testimony” given while an investigation is ongoing would create a new apprehension. But their
general insight does not resolve the question (and not simply because they are not binding on this
court and reached different conclusions). Both performed a perfunctory analysis of the
“proceeding” question, citing—without much explanation—authorities that purportedly support
either conclusion. Compare Trejo-Zambrano, 582 F.2d at 464 (“A waiver of the Fifth
Amendment privilege at one stage of a proceeding is not a waiver of that right for other stages.”),
with Parcels of Land, 903 F.2d at 43 (“[The witness’s] deposition and the filing of his affidavit,
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however, were part of the same proceeding, and thus this [proceeding-specific] limitation does
not apply.”).
More helpful is the substantial body of law involving testimony at other pretrial
proceedings. Consider first testimony given to grand juries. Courts generally hold that a grand
jury and trial are two separate proceedings, such that grand jury testimony does not necessarily
waive the privilege at trial. See 1 McCormick on Evid., § 133 (8th Ed.). The Third Circuit
explained why in In re Neff: “[t]he grand jury is not a judicial tribunal but rather an informing or
accusing body.” 206 F.2d 149, 152 (3d Cir. 1953). It does not conduct judicial proceedings, but
rather “secret ex parte investigation[s]” that returns indictments. Id. “It is clear, therefore, that
the investigation of a grand jury is a proceeding which is wholly separate and distinct from, and
of a different nature than, the subsequent trial of the defendant in the district court.” Id. It thus
followed that a witness “who testified to a matter before the grand jury did not thereby waive her
right to claim her constitutional privilege against self-incrimination as to the same subject matter
when called as a witness in the subsequent trial of a person indicted by the grand jury.” Id. One
of the cases relied on by Neff, the Iowa Supreme Court’s opinion in Duckworth v. Dist. Ct. of
Woodbury Cnty., 264 N.W. 717 (Iowa 1936), elaborated further, grounding its decision on the
purpose of waiver rule. “The reason of this [waiver] rule is that a witness cannot arbitrarily in
part waive and in part reserve his privilege, for the purpose of becoming a partisan in the case,
revealing only so much of the truth as will benefit one of the parties, and asserting his privilege
when interrogated as to facts which would cut the other way.” Id. at 721 (citation omitted). The
privilege still existed at trial—the trial was not “a continuation of the investigation begun in the
grand jury room” because of the different purposes of the two proceedings. Id. at 722. And the
Second Circuit extended this to testifying twice before the same grand jury in United States v.
Miranti, 253 F.2d 135 (2d Cir. 1958). Conditions may have changed between the proceedings or
the witness may be subject to a different interrogation for different purposes; in either event,
“reiteration adds to the credibility of the statement.” Id. at 140. Thus, the two grand jury
appearances were separate—“[t]he passage of time and the events occurring between the two
appearances render the proceedings separate for the purposes of the waiver rule.” Id.Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 24
Other pretrial events in criminal cases are generally considered separate proceedings.
In State v. Whiting, the Court of Appeals of Wisconsin held that a witness could invoke the
privilege at trial after he had testified at the defendant’s preliminary examination. 402 N.W.2d
723, 728 (Wis. Ct. App. 1987). Analogizing the case to the grand jury proceeding considered in
Neff, the court noted that “extending waiver from a related proceeding to the subsequent trial
creates a danger of increased legal detriment to the witness.” Id. at 729. “Moreover, a contrary
rule would discourage witnesses from waiving the privilege at preliminary proceedings, thus
depriving the truth-seeking process not only of trial testimony but of whatever investigatory
value the preliminary testimony provides.” Id. There was an “essential difference” between the
preliminary examination and trial because the exam was “intended to be a summary proceeding
to determine basic facts as to probability;” thus, the waiver did not carry over from “one distinct
stage of a criminal prosecution to another.” Id. at 730. See also Overend v. Super. Ct. of City &
Cnty. of San Francisco, 63 P. 372, 374 (Cal. 1900) (concluding that testimony at a preliminary
examination did not waive the right to testify at trial); People v. Williams, 181 P.3d 1035, 1058
(Cal. 2008) (“[T]he failure of a witness to claim the privilege at a preliminary hearing does not
prevent the witness from refusing to testify regarding the same incriminating material at the
trial.”); Johnson, 488 F.2d at 1209–11 (concluding that a codefendant witness who pleaded
guilty prior to trial did not waive the privilege at the other defendant’s trial by making
disclosures at the plea hearing).
Consider too another element of civil discovery: pretrial affidavits. Courts largely
conclude that these are separate from trial but not from subsequent depositions. In Samuel v.
People, the Illinois Supreme Court held that a pretrial affidavit did not waive the privilege for
trial. 45 N.E. 728 (Ill. 1896). While “a witness who voluntarily and understandingly discloses
part of a transaction exposing him to a criminal prosecution, without claiming his privilege, is
ordinarily obliged to go forward, and complete the narrative, by stating the whole of the
transaction,” that did not apply “unless the statements made in the affidavit indorsed upon the
information and the statements made in the testimony elicited upon the trial may be regarded as
parts of one continuous account.” Id. at 729. But the affidavit and trial did not run together—
“the doctrine applies only to a case where the witness, while testifying upon the trial, states a
fact, and afterwards refuses to give the details, or discloses a part of a transaction in which he
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was criminally concerned, without claiming his privilege, and then refuses to go forward, and
state the whole; it does not apply to a case where some admission made long prior to the trial is
sought to be brought forward and joined to the answers given on the trial.” Id. (emphasis added).
The Ninth Circuit has concluded similarly. See Trejo-Zambrano, 582 F.2d at 463–64 (noting
that a witness did not “waive his right to refuse to give self-incriminating testimony when he
executed the incriminating affidavit” because “[a] waiver of the Fifth Amendment privilege at
one stage of a proceeding is not a waiver of that right for other stages”); Jeffries v. United States,
215 F.2d 225, 226 (9th Cir. 1954) (commenting that the author of an affidavit used to grant the
defendant a new trial “could refuse to testify [at the new trial] by reason of his privilege against
self incrimination”). But other courts have concluded that a pretrial affidavit is not separate from
a pretrial deposition, meaning that a court may strike an affidavit if the witness invokes the
privilege at the deposition. See Parcels of Land, 903 F.2d at 42–43 (“[I]t is true that had [the
defendant’s] affidavit been filed and his deposition taken in separate, distinct proceedings,
neither would have affected the treatment of the other, [but the two] were part of the same
proceeding, and thus this limitation does not apply.”); In re Edmond, 934 F.2d 1304, 1308–09
(4th Cir. 1991) (sustaining a district court order striking a witness’s affidavit after the witness
refused to answer questions at a deposition).
Finally, we would be remiss to leave unacknowledged the cases that address denials of
motions to stay proceedings while implying that deposition testimony waives the privilege at a
later trial. In Creative Consumer Concepts, the defendant was involved in both civil and
criminal cases—she unsuccessfully sought a stay of the civil proceedings while the criminal ones
progressed. 563 F.3d at 1080–81. The Tenth Circuit held that the district court did not abuse its
discretion by denying the stay—there was limited overlap between the two cases, the defendant
provided no concrete examples of how the denial prejudiced her, and she had already been
deposed in the civil case. Id. at 1081. The defendant “waived her Fifth Amendment privilege
with respect to the questions she answered during her deposition,” and a stay would not have
changed that she had “already provided the evidence used against her” in the civil case. Id. And
in Microfinancial, Inc. v. Premier Holidays Inter., Inc., the First Circuit affirmed a similar denial
of a stay because the defendant had already signed an affidavit and given deposition testimony.
385 F.3d 72, 78 (1st Cir. 2004). “By failing to invoke his Fifth Amendment privilege, he likely
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waived the privilege with respect to the subject matter of his deposition testimony for the
duration of the proceeding in which that testimony was given.” Id. “When all is said and done, a
stay cannot preserve what a defendant already has surrendered.” Id. at 79. See also De Lisi v.
Crosby, 402 F.3d 1294, 1301 (11th Cir. 2005) (noting that a witness “waived the privilege [at
trial] when he answered the same question” at a deposition but holding that the error was
harmless).
Though none of these authorities are binding on this court, they provide a reasonable
survey of how other courts have addressed waivers of the Fifth Amendment privilege. First, a
majority of jurisdictions conclude that a waiver at one hearing does not carry over to trial
because the two are not part of the same proceeding. See, e.g., Miranti, 253 F.2d at 140(collecting cases). In most circumstances, the witnesses were able to claim the privilege at trial.
Second, when addressing pretrial testimonial events, the further the initial testimony is from trial,
the more likely it is that a court will conclude that the two proceedings are separate. See, e.g.,
Samuel, 45 N.E. at 729. Often, this is because of the purpose of the first hearing is distinct from
that of trial. See, e.g., Neff, 206 F.2d at 152. Third, pretrial discovery affidavits do not
necessarily waive the privilege at subsequent hearings, but it depends on the nature of the next
hearing. An affidavit and subsequent deposition may be part of the same proceeding, see
Parcels of Land, 903 F.2d at 43–44, while an affidavit and trial are not, see Samuel, 45 N.E at
729. Fourth, the cases relied on by Moser (and, by extension, the district court and appellees) are
less persuasive. Many of those cases commented without explanation that deposition testimony
waived the privilege for the remainder of civil proceeding. See, e.g., Creative Consumer
Concepts, 563 F.3d at 1081. And in Creative Consumer Concepts and Microfinancial, the Fifth
Amendment waiver issue was not necessary to their holdings, rendering the discussion mere
dicta.
But the most telling thread evident in this caselaw is that many courts, like Mitchell, look
to the purpose and logic supporting the Fifth Amendment. When comparing the two events at
issue, courts often determine whether a second waiver is needed by considering whether a waiver
best serves the purposes of the Fifth Amendment and, more specifically, the purposes of the
“waiver” rule. See, e.g., Duckworth, 264 N.W. at 721–22. Indeed, we find the opinions that do
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this, such as Neff, Samuel, Duckworth, and Roberts, far more persuasive than opinions that do
not. For that reason, we now consider whether the logic and purpose of the Fifth Amendment
supports concluding that appellants’ waivers of the privilege at their depositions carry over to
trial because the two are part of the same proceeding.
D.
At the outset, we highlight the general principle that the Fifth Amendment privilege is to
be interpreted broadly. It must be “accorded liberal construction in favor of the right it was
intended to secure.” Hoffman, 341 U.S. at 486. While this liberal-construction canon does not,
by itself, resolve the waiver issue in this case, we note it is the starting point for our analysis.
Doing so gives full value to the Supreme Court’s instruction on the importance and breadth of
the privilege while also retaining our independent responsibility to determine whether the
purpose and logic of the Fifth Amendment support such a liberal construction in the
circumstances before us. Cf. Hoffman, 341 U.S. at 486; Estelle, 451 U.S. at 467–68; see also
Convertino v. U.S. Dep’t of Justice, 795 F.3d 587, 596 (6th Cir. 2015) (“Courts must indulge
every reasonable presumption against waiver.” (quotation marks and citation omitted)). So,
under this canon, absent some justification to the contrary, appellants should be able to invoke it.
But no such justification contrary to the privilege exists here. Rather, the logic and purpose of
the privilege support the conclusion that a deposition and trial are separate proceedings.
The “waiver” rule is intended to protect the fact-finding process and prevent witnesses
from distorting the truth through providing self-selected testimony or testifying only to the
favorable aspects of his or her testimony. See Rogers, 340 U.S. at 371; Mitchell, 526 U.S. at
322. But when a witness testifies, the Fifth Amendment requires the witness to submit him- or
herself to cross-examination, so that the court and the parties may elicit the particulars of the
witness’s testimony. See Brown, 356 U.S. at 155–56. For that reason, cross-examination
determines the breadth of the witness’s waiver. Id. at 154–55. Described as the “greatest legal
engine ever invented for the discovery of truth,” Maryland v. Craig, 497 U.S. 836, 846 (1990), it
is the key element needed to protect the fact-finding process and to prevent a witness from
distorting the truth, see, e.g., Doe v. Univ. of Cincinnati, 872 F.3d 393, 401–02 (6th Cir. 2017).
Cross-examination prevents a witness from making only a partial disclosure of the truth by
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testifying only on direct examination. In our adversarial justice system, the parties each have the
responsibility to set forth their version of the facts. See Malloy, 378 U.S. at 7–8. When a
witness testifies for one party, they may present testimony in that party’s favor; ordinarily, the
opposing party may counter that testimony through cross-examination. Each party has the onus
to present their own version of the facts. By requiring cross-examination, the Fifth Amendment
waiver rule protects this fact-finding process.
Consequently, cross-examination is the crucial factor in determining what qualifies as a
Fifth Amendment proceeding. A witness cannot set forth certain testimony and then “withdraw
from the cross-fire of interrogation before the reliability of his testimony has been fully tested.”
Brown, 356 U.S. at 155. See also Duckworth, 264 N.W. at 721 (describing that a waiver of the
privilege compels the witness to disclose the truth “by a rigid cross-examination”). Allowing
this process would “mutilate the truth,” Brown, 356 U.S. at 156, and “cast[] doubt on the
trustworthiness of the statements and diminish[] the integrity of the factual inquiry,” Mitchell,
526 U.S. at 322. Mitchell demonstrates the importance of cross-examination, as the court
reasoned that a lack of cross-examination supported a finding that no waiver occurred. Id. at
322–23. In this manner, the Fifth Amendment privilege attaches only to the event where the
witness testifies and is then subject to cross-examination, such as at a deposition or trial. See
Samuel, 45 N.E. at 729 (“[T]he doctrine applies only to a case where the witness, while testifying
upon the trial, states a fact, and afterwards refuses to give the details.” (emphasis added));
1 McCormick on Evid., § 140, p. 528 (4th Ed.) (“The traditional rule that a witness’s loss of the
privilege by testifying lasts only during that ‘proceeding’ in which the witness testified is
consistent with the spirit of the privilege.” (emphasis added)). This rationale, therefore, protects
the opposing party’s right to cross-examination—through that protected cross-examination, that
party can still present their facts to the court. A witness may be able to distort the truth by
presenting self-selected testimony without cross-examination, but self-selected testimony is not
possible if the opposing party can cross-examine the witness. For those reasons, this justification
strongly supports concluding that a Fifth Amendment waiver applies only to a single testimonial
event where the witness is subject to both direct and cross-examination.
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The depositions that occurred in this case qualify as one of these testimonial events. In a
deposition, witnesses do not have an opportunity to “mutilate” the truth because both parties
have an opportunity to examine the witness. See Fed. R. Civ. P. 30(c). As at trial, a witness has
an opportunity to present a side of the story favorable to one party, but the other party is entitled
to cross-examine the witness on that testimony. This single testimonial event, so long as cross-
examination is allowed and performed, comprises the extent of the Fifth Amendment waiver. If
a witness chooses to submit to a deposition, as appellants did here, the entirety of their waiver is
determined at the deposition—“the breadth of his waiver is determined by the scope of relevant
cross-examination.” Brown, 356 U.S. at 154–55. Once that cross-examination is finished and
the parties each had an opportunity to elicit facts favorable to them, the waiver is finished and the
witness may choose to assert a privilege anew at a different testimonial event. Yet the fact-
finding process is still intact. If the witness does re-assert the privilege at trial or other event,
that new assertion does not affect the availability of the deposition testimony—it may well be
admissible at trial regardless. See Fed. R. Evid. 804 (providing that a witness who claims a
privilege is unavailable and, thus, their prior hearsay testimony is admissible at trial); United
States v. Toney, 599 F.2d 787, 789–90 (6th Cir. 1979) (concluding that a witness’s invocation of
the Fifth Amendment privilege rendered him “unavailable” under Rule 804); Roberts, 622 A.2d
at 1235 (explaining that a deposition “generates a potentially admissible transcript that is
available to all parties”). The ultimate decider of fact thereby still has an accurate picture of the
case.
The need to protect a witness from further incrimination also supports concluding that the
two events are separate. The Fifth Amendment applies when witnesses face a real danger of
further incrimination. See Rogers, 340 U.S. at 374; Apfelbaum, 445 U.S. at 128. And the rule
that waivers apply throughout their own proceeding but not beyond (as followed by most
circuits) is a logical extension of this, intended to account for changed circumstances that may
create new grounds for apprehension and for the possibility that witnesses could further
incriminate themselves. See Morganroth, 718 F.2d at 165; Roberts, 622 A.2d at 1235. When a
witness is called upon to repeat his or her testimony, several such hazards exist. If a witness is
required to testify anew, that witness may either repeat his or her earlier testimony verbatim or
provide information in addition to the earlier testimony. Each situation could further incriminate
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the witness. For one, he or she may make new disclosures that reveal new incriminating
information. See Roberts, 622 A.2d at 1235; 1 McCormick on Evid., § 140, p. 528 (4th Ed.)
(“[I]n the excitement and confusion that may be generated by the second appearance, the witness
might make admissions beyond those previously made.”). But even if he or she merely repeated
his or her earlier testimony, that could also further incriminate the witness. Repetition adds
credibility to the earlier testimony, Miranti, 253 F.2d at 140, and may “encourage prosecution as
a practical matter,” 1 McCormick on Evid., § 140, p. 528 (4th Ed.).
But whether the witness makes further disclosures or not, testifying anew brings with it
the concrete risk of perjury. Time and again, perjury has been recognized as a legitimate
apprehension justifying invocation of the privilege. See Morganroth, 718 F.2d at 166 (“Once a
witness has testified under oath, he risks the possibility of perjury charges in addition to any risk
he may face for prosecution for non-perjury offenses suggested by his testimony.”);
1 McCormick on Evid., § 140, p. 528 (4th Ed.) (“Testimony during the second appearance
might . . . increase the risk of liability for perjury based on the first appearance.”). Appellants
have clearly articulated this fear—though appellants maintain the veracity of their prior
testimony, appellees seek to show that appellants have lied about what they know. In other
words, appellants face a real and concrete danger that they could, intentionally or not, perjure
themselves through subsequent testimony. This too is enough to require a new invocation of the
privilege. “When a witness is asked a question in a subsequent proceeding, the answer to which
could show that he has already committed the crime of perjury in a prior proceeding, his refusal
to answer is permissible almost by the definition of self-incrimination.” Morganroth, 718 F.2d
at 166. Morganroth’s admonition makes little sense if separate testimonial events are still part of
the same “proceeding” for Fifth Amendment purposes.
This flows into another justification: changed circumstances leading to greater
apprehension. In this case, appellants were deposed in 2020; their trial testimony was required in
2022 and would be again in 2023 and beyond. During the intervening time, new risks have
indeed presented themselves. In addition to new apprehensions from repetition of testimony or
perjury, appellants are also now facing criminal indictments. While appellants knew of the
criminal investigations into their conduct and they still chose to waive their privilege at their
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depositions, they did not know if they would face new charges in the future, and, if so, what
those charges would be. Courts have addressed situations where multiple years had passed and
an intervening indictment had occurred, noting that this was enough to justify requiring a new
waiver of Fifth Amendment privileges. See, e.g., Miranti, 253 F.2d at 140 (concluding that the
passage of a year and an intervening indictment and conviction “render[ed] the proceedings
separate for the purposes of the waiver rule”); Samuel, 45 N.E. at 729 (noting that the privilege
did not apply when the waiver was “made long prior to the trial”); Ellis v. United States,
416 F.2d 791, 805 (D.C. Cir. 1969) (noting that its holding that a waiver carries forward to a
different proceeding does not apply “when the witness is himself accused or under indictment”).
So whether appellants should have known new indictments were coming is an immaterial
element in this determination—courts focus instead on what actually transpired for the witnesses
and how those new events resulted in changed circumstances.19
Finally, we consider the purpose of the two events at issue. In Neff, the court reasoned
that a grand jury and a trial were separate proceedings because of their different purposes.
206 F.2d at 152. And in Mitchell, the Supreme Court considered the differing purposes of a plea
and sentencing hearings, though it declined to decide whether the two were separate proceedings.
See 526 U.S. at 322–23, 325, 327. Similarly, the divergent purposes of a deposition and a trial
support concluding that the two are not one “proceeding” for Fifth Amendment purposes. A trial
and a deposition serve different evidentiary purposes, even though they may share similar
procedures. A trial is the “judicial investigation and determination of the issues between the
parties to an action before a competent tribunal.” 75 Am. Jur. 2d Trial § 1 (May 2022 Update).
Its purpose is to determine conclusively the “validity of the allegations.” Id. at § 2. See also
Trial, Black’s Law Dictionary (11th Ed. 2019) (“A formal judicial examination of evidence and
determination of legal claims in an adversary proceeding.” (emphasis added)). In other words,
the trial is the actual, final determination of questions of fact—it is when issues are conclusively
decided. A deposition is different. It is questioning performed in anticipation of trial to
19
Peeler, again, does not change this because the Solicitor General has vowed to refile (or appeal) any
dismissed charges. But even if those charges are forever dismissed, appellants still face a new fear of perjury for
their testimony. Cf. Morganroth, 718 F.2d at 166. Thus, appellants still face a real possibility of further
incrimination, and Peeler does not affect their right to claim the privilege at trial.
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“produce[] relevant evidence which is useful in determining the merits of the claims asserted by
the parties.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741 (1975). See also
Deposition, Black’s Law Dictionary (11th Ed. 2019) (“A witness’s out-of-court testimony that is
reduced to writing . . . for later use in court or for discovery purposes.”). A deposition is
certainly done to assist with discovery and to produce evidence for trial. But it is not the trial.
To that end, the federal rules have different procedures for taking deposition and trial testimony.
For example, when taking deposition testimony, a witness must assert an objection to a question,
yet the “testimony is taken subject to any objection.” Fed. R. Civ. P. 30(c)(2). A witness is
permitted not to answer only in limited circumstances, such as “when necessary to preserve a
privilege.” Id. These rules demonstrate an intent to produce as much evidence as possible
during discovery. At trial, however, an accurate and trustworthy presentation of evidence is
paramount. Parties may object to the admissibility of testimony or other evidence. See 75 Am.
Jur. 2d Trial § 303. The district court is required to rule on those objections, and, unlike
depositions, it may exclude evidence if an objection is valid. Id. at § 310. Consequently, though
there may be some similarities between a deposition and trial, the two share different purposes
and, thus, are separate.
For these reasons, we conclude that a deposition and trial are separate proceedings for
Fifth Amendment purposes. The logic, justifications, and purpose underlying the Fifth
Amendment support concluding that a single testimonial event is its own proceeding for
purposes of a waiver. Cross-examination is the mechanism employed by our evidentiary system
to protect the fact-finding process and to prevent distortion of the truth. Here, appellants were
subject to such cross-examination during their deposition. They may face further incrimination
during trial by repetition of their testimony, the possibility of further disclosure, and the threat of
perjury. The purposes of a deposition and trial serve different ends. And caselaw and treatises,
though not uniform, largely support such a conclusion. Therefore, appellants’ waiver of their
Fifth Amendment privileges at their depositions did not necessarily waive the privilege for
purposes of trial.
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E.
Before moving on, we take the opportunity to respond to the dissent. Unlike the
concurrence, our opinions agree that we should examine the logic and purposes of the Fifth
Amendment to resolve our “proceeding” inquiry.20 However, we diverge on its application, as
the dissent would affirm the district court and conclude that a deposition and a trial in the same
civil case are part of the same “proceeding.” We find the dissent’s examination and application
of these purposes unpersuasive.
To begin, the dissent’s analysis repeatedly relies on the premise that appellants had
“reason to know” that they were waiving the privilege at their deposition; consequently, they
should have known the waivers would carry forward to trial, notwithstanding any changed
circumstances. However, this standard has little basis in caselaw. The dissent divines the
“reason to know” standard not from our court or from the Supreme Court, but from a wholly
distinguishable and sometimes-questioned Second Circuit opinion, Klein v. Harris, 667 F.2d 274(2d. Cir. 1981). There, a witness testified for the defendant and was recalled to testify when he
stated privately to defense counsel that he had “lied on the stand;” yet when recalled, the witness
invoked his Fifth Amendment privilege. Id. at 279–80. To determine whether a waiver
occurred, the Second Circuit invented a two-part test:
[W]e read the prior decisions of the Supreme Court and the courts of this Circuit
to hold that a court should only infer a waiver of the fifth amendment’s privilege
against self-incrimination from a witness’ prior statements if (1) the witness’ prior
statements have created a significant likelihood that the finder of fact will be left
with and prone to rely on a distorted view of the truth, and (2) the witness had
reason to know that his prior statements would be interpreted as a waiver of the
fifth amendment’s privilege against self-incrimination.
Id. at 287 (emphasis added). Applying that test, the court held that the witness, “by testifying
freely about the circumstances of the crime when he first took the stand, waived any fifth
amendment privilege he might otherwise have been entitled to invoke to avoid testifying” about
20
There is good reason for this approach, even beyond Mitchell. When addressing constitutional questions
of first impression, both the Supreme Court and our court have turned to the purposes or rationales underlying the
constitutional provisions. See, e.g., United States v. Gillock, 445 U.S. 360, 369–73 (1980); United States v.
Beckham, 789 F.2d 401, 413–14 (6th Cir. 1986).
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the crime. Id. at 289. “Where, as here, a witness’ prior testimony results in a testimonial waiver
of the witness’ fifth amendment privilege, the trial judge must, if the witness is subsequently
recalled to the stand, direct the witness to testify, if necessary under penalty of contempt.” Id.
Application of this “reason to know” standard here is problematic. For one, Klein
addressed two instances of testifying during a single trial. Of course, that factual distinction by
itself does not discredit the case; we must consider its reasoning if the Fifth Amendment requires
imputing some knowledge to the witnesses. But it is not clear that the Fifth Amendment does so,
and certainly not for our purposes today. Klein did not cite the caselaw upon which it relied for
its two-part standard; it merely declared that it “read [those] prior decisions” as supporting its
purported “reason to know” standard. 667 F.2d at 287. This standard has been questioned, see
1 McCormick on Evid., § 133 (8th Ed.) (“This approach has been criticized as inconsistent with
the Supreme Court’s analysis of the privilege . . . .”), and for good reason. The Supreme Court
does not require a “knowing and intelligent” waiver in the Fifth Amendment context, yet Klein’s
standard explicitly assesses a witness’s purported knowledge for waiver purposes. Cf. Garner v.
United States, 424 U.S. 648, 654 n.9 (1976). This has led one court to conclude that Klein
“improperly adds elements” to the waiver analysis. See In re A & L Oil Co., Inc., 200 B.R. 21,
25 (Bankr. D.N.J. 1996). Further, the “reason to know” element is not integral to other courts’
determinations of whether two different events are part of the same “proceeding.” Those cases
instead focus on individual testimonial events and the ability to prevent distortion of the truth
through cross-examination. See Brown, 356 U.S. at 154–56; Mitchell, 526 U.S. at 322–23;
Duckworth, 264 N.W. at 721; Samuel, 45 N.E. at 729; Parcels of Land, 903 F.2d at 43. Courts,
apart from Klein and the few that rely on it, do not undertake a “reason to know” analysis when
determining “proceeding” questions under the Fifth Amendment.21
21
We acknowledge that some courts have adopted Klein’s test. See, e.g., State v. Barros, 148 A.3d 168,
176 (R.I. 2016); 1 McCormick on Evid. § 133 n.18 (8th Ed.). But we have not found widespread adoption of this
test, cf. In re Saunders, 528 B.R. 860, 867–68 (N.D. Ga. 2015) (describing the test as “widely adopted”), and we
note that, perhaps contrary to Klein, at least one other court has concluded that a witness did not waive her privilege
by previously testifying at the same trial, see People v. Bagby, 482 N.E.2d 41, 43–44 (N.Y. 1985). In sum, the
opinions adopting Klein’s standard have neither critically examined Klein nor evaluated whether its standard is
consistent with the Fifth Amendment analysis employed by most courts addressing whether two events are the same
“proceeding.” We find their adoption of Klein’s test unpersuasive for our purposes.
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In any event, even if it is appropriate to consider Klein’s “reason to know” element when
addressing some Fifth Amendment issues, it does not apply here. The issue in Klein, as in
Mitchell, was whether a waiver had occurred in the first place. See 667 F.2d at 287. It was not
focused on the scope of a waiver or whether two different testimonial events were part of the
same proceeding—indeed, the court presumed without discussion that it was dealing with a
single proceeding. See id. at 288 (noting simply that waiver statements must be “voluntarily
made under oath in the context of the same judicial proceeding”). This proceeding question was
not answered in Klein, so we cannot (and should not) rely so heavily on its “reason to know”
statement for purposes of our proceeding inquiry. To derive a rule from a case that did not
address the pertinent question is “to build a syllogism upon a conjecture.” People v. Seewald,
879 N.W.2d 237, 242 n.26 (Mich. 2016). See also Wright v. Spaulding, 939 F.3d 695, 702 (6th
Cir. 2019) (“[Q]uestions which merely lurk in the record, neither brought to the attention of the
court nor ruled upon, are not to be considered as having been so decided as to constitute
precedents.” (quotation marks and citation omitted)); Bryan A. Garner, et al., The Law of
Judicial Precedent 87–88 (Thompson Reuters 2016) (explaining that “assumed rules” do not
make a “centerpiece” for an argument). In sum, this “reason to know” element does not assist
with our Fifth Amendment analysis; it speaks only to the issue of whether a waiver occurred in
the first place. It has little applicability here where appellants concede—and rightly so—that
their deposition testimony constituted a waiver but only for purposes of the deposition itself.22
The dissent’s other arguments concerning the purposes of the Fifth Amendment are
similarly unavailing. In discussing the need to prevent distortion of the truth, the dissent opines
that the need to prevent discovery abuses and to promote fairness “tips in favor of holding a
deponent to their waiver come trial.” Dissent, p. 65. It is “not unfair to require further testimony
as to incriminating details once a witness chooses to testify about incriminating facts,” because
“[a]llowing a witness to testify at a deposition only then to allow them to invoke their privilege
against self-incrimination on the same subjects about which they were already deposed would
22
To be sure, we do not criticize the whole of Klein, including whether it reached the right conclusion or
whether other aspects of its two-part test may assist with Fifth Amendment issues. Whether two different acts of
testifying at one trial are separate proceedings for Fifth Amendment purposes is not before us. Our criticism is
directed solely at reliance on Klein’s “reason to know” element for our analysis when that element is not closely
entwined with most courts’ analysis of “proceeding” questions.
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both give a witness insight into the questions that a party might ask at trial as well as let the
witness avoid providing follow-up answers based on the ones that they have already given.”
Dissent, pp. 61, 65. However, the dissent places a high reliance on fairness interests that are not
found in caselaw. Courts have not held that the Fifth Amendment should always produce the
fairest discovery procedures, such as prohibiting insight into the opposing parties’ theories or
relying on live, not recorded, testimony at trial. Such concerns, though reasonable, are not part
of the logic underlying the Fifth Amendment. Rather, the Fifth Amendment is expressly
concerned with preventing distortion of the truth and self-selected testimony, and we emphasize
again that it provides for cross-examination as the mechanism to protect that truth. See Brown,
356 U.S. at 154–56. But, as a byproduct, the purposes and justifications for the Fifth
Amendment still mitigate the possibility of discovery abuse. A deponent is still subject to
examination and cross-examination at a deposition; thus, he or she cannot avoid follow-up
examination. Additionally, while the discovery process often benefits from live testimony, it
nonetheless remains that the waived deposition testimony is likely preserved and available for
viewing at trial. See Fed. R. Evid. 804; Toney, 599 F.2d at 789–90. A witness who waives his or
her privilege only to assert it later at trial will almost certainly not be able to prevent disclosure
of those statements, and he or she may even find their testimony subject to an adverse inference
in civil cases like this. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (“[T]he 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.”) (citation omitted); Davis v.
Mut. Life Ins. Co. of New York, 6 F.3d 367, 384–85 (6th Cir. 1993) (extending the possible
inference to non-party witnesses). But see Griffith v. California, 380 U.S. 609, 613–15 (1965)
(forbidding such inference in criminal cases). The dissent gives short shrift to these points.
Consequently, we disagree with its conclusion that the distortion rationale favors extending a
waiver not only to the deposition, but also to trial; instead, that purpose of the Fifth Amendment
continue to favor limiting the waiver to the deposition itself.
The dissent then opines that the further-incrimination rationale supports its conclusion
because deponents generally should know that their statements are made in preparation of trial
and, thus, it is not unfair to carry those statements forward. Again, the dissent relies on
unpersuasive fairness concerns and a “reason to know” standard inapplicable here. But another
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point deserves response: the dissent incorrectly dismisses Morganroth and its perjury discussion
as further justification that a deposition and trial are separate proceedings. It concludes that
Morganroth involved two different civil cases and, thus, did not speak to whether a deposition
and trial were separate proceedings. Though Morganroth unquestionably involved two separate
proceedings and did not resolve our issue, its reasoning nonetheless supports concluding that a
single testimonial event, such as a deposition or trial, is its own proceeding for Fifth Amendment
purposes. The Fifth Amendment is designed to protect a witness’s right not to be a witness
against himself, and it applies when there is a real danger of incrimination. Estelle, 451 U.S. at467–68; Rogers, 340 U.S. at 374. When a witness testifies, that always brings with it the
possibility of incriminating testimony, including perjury. Thus, to avoid the possibility of further
incrimination, a waiver should apply only to a single testimonial event. Otherwise, a witness
will be compelled to give testimony that could be used to incriminate him. Here, appellants did
not face the same risks at their depositions as they did at trial—the likelihood of perjury,
increased credibility of their already incriminating testimony, and a greater possibility of
prosecution are all new apprehensions. See Miranti, 253 F.2d at 140; Morganroth, 718 F.2d at
166; 1 McCormick on Evid., § 140, p. 528 (4th Ed.). Therefore, forcing a witness to testify anew
bring with it new risks of incrimination—meaning a new waiver is required for a new testimonial
event in the face of such new apprehensions.
Finally, we disagree with the dissent’s characterization of the purposes of a deposition
and trial. We agree that a deposition and trial are more similar than a plea hearing and
sentencing, see Mitchell, 526 U.S. at 322–23, or a grand jury and criminal trial, see Neff,
206 F.2d at 152. And we acknowledge that many of the procedures governing depositions are
similar to, if not the same as, trial. See generally Fed. R. Civ. P. 30(c). Depositions may indeed
be conducted in preparation for trial and help to “sidestep the need for trial altogether;” from a
practical perspective, a deponent likely should not “reasonably be surprised when they are called
to testify at trial about matters covered in their deposition.” Dissent, pp. 61, 63. But despite
these arguments to the contrary, the dissent cannot overcome the basic, immutable fact that a
deposition is not a trial. No matter how closely entwined they may seem, their purposes are
distinct. Compare 75 Am. Jur. 2d Trial § 1, with Blue Chip Stamps, 421 U.S. at 741. And the
divergent purposes of the two events at issue support concluding that a testimonial event, such as
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a deposition or a trial, is its own proceeding for Fifth Amendment purposes. Therefore, we
reject the dissent’s arguments to the contrary.
F.
While our conclusion that the two testimonial events here are separate proceedings does
not necessarily mean a waiver occurred at trial, it does not conclusively resolve the issue. Our
circuit has not determined whether a waiver at one proceeding carries over to the next.
Morganroth, 718 F.2d at 165–166. However, a large majority of jurisdictions have concluded
that a waiver “in one proceeding does not constitute a waiver . . . in a second proceeding.” Id. at
165. See, e.g., United States v. Licavoli, 604 F.2d 613, 623 (9th Cir. 1979); United States v.
Cain, 544 F.2d 1113, 1117 (1st Cir. 1976); Miranti, 253 F.2d at 139; Neff, 206 F.2d at 152;
Poretto v. United States, 196 F.2d at 394 (5th Cir. 1952). As described, this “majority” rule is
predicated on certain justifications: that a change in conditions may “creat[e] new grounds for
apprehension” and that repetition of testimony “could constitute an independent source of
evidence against” the witness. Morganroth, 718 F.2d at 165.
Only the D.C. Circuit’s decision in Ellis is discordant. 416 F.2d at 791. In its view,
“[o]nce a witness has voluntarily spoken out, we do not see how his protected interest is
jeopardized by testifying in a subsequent proceeding, provided he is not required to disclose
matters of substance which are unknown to the Government.” 416 F.2d at 801. Thus, no extra
risk of incrimination was present, and a finding of waiver for the second proceeding would not
expose the witness to further harm. Id. at 801–02. But Ellis did not extend its holding to “apply
when the witness is himself accused or under indictment.” Id. at 805.
As our above analysis supports concluding that a deposition and trial are separate
proceedings, it similarly requires adopting the majority rule that a waiver in one proceeding does
not carry forward to another. The great weight of authority supports concluding that waivers do
not carry over; Ellis stands by itself and has been questioned. See, e.g., 1 McCormick on Evid.,
§ 140, p. 528 (4th Ed.) (“Ellis unwisely extends a witness’s loss of his privilege beyond the
‘proceeding’ in which he testifies.”). There is a good reason for this criticism. For one, Ellis
goes against the principle that the Fifth Amendment privilege should be interpreted broadly
without providing a compelling justification for doing so. Cf. Hoffman, 341 U.S. at 486. And, as
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recognized in other cases, Ellis incorrectly assumes that requiring a witness to testify anew
would not expose the witness to any additional risk of harm. See Johnson, 488 F.2d at 1210–11
(critiquing Ellis’s assumption that “the witness’ testimony at trial would cover nothing not
already disclosed to the grand jury”). But other cases demonstrate that this is false. The risk of
perjury alone, such as discussed in Morganroth, would give rise to a new risk of harm.
Testifying anew subjects the witness to a risk of new, inadvertent disclosure. And even if the
witness discloses nothing new, repeating testimony lends credibility to that testimony and
encourages prosecution for the disclosed incriminating facts. See, e.g., Miranti, 253 F.2d at 140.
Thus, new risks necessarily exist when a witness testifies again, and Ellis relied on faulty
reasoning for suggesting otherwise. In short, cabining a waiver to its own proceeding protects a
witness’s right to assert the privilege free of new apprehensions and independent sources of
evidence against them. Compelling a witness to provide testimony in a second proceeding when
facing these risks contravenes the Fifth Amendment. In sum, a waiver of testimony in one
proceeding does not waive it for the next. For that reason, appellants’ waiver at the first
proceeding (their depositions) does not conclusively carry over to the second (the forthcoming
trials).
G.
Given our holding that appellants may assert their privilege at trial, we must now finish
with the issue of how they may do so. Appellants argue that they are entitled to a “blanket
assertion” of immunity, while appellees assert that they must do so on a question-by-question
basis.
Parties are entitled to a blanket assertion of the Fifth Amendment privilege only in
limited circumstances. “The longstanding rule of this circuit is that a defendant must take the
stand and answer individualized questions in order to invoke his Fifth Amendment privilege.”
United States v. Bates, 552 F.3d 472, 475 (6th Cir. 2009). See also Morganroth, 718 F.3d at 167
(“The privilege must be asserted by a witness with respect to particular questions . . . .”).
Generally, a blanket assertion, by itself, does not demonstrate the “reasonable fear of danger of
prosecution” needed to invoke the privilege. United States v. Highgate, 521 F.3d 590, 593–94
(6th Cir. 2008). But we have also recognized that, “in instances where the witness has a clear
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entitlement to claim the privilege,” such as where a party seeks to blame the witness for the
alleged wrongs committed, “forcing the witness to take the stand would be futile and thus
unnecessary.” United States v. McAllister, 693 F.3d 572, 583–84 (6th Cir. 2012) (quotation
omitted). “In such a case, the reason behind the rule does not apply because the court already
knows that ‘reasonable cause’ to invoke the privilege exists.” Id. at 583 (quoting Bates, 552 F.3d
at 476). But in either instance, the district court must “actually decide whether [the] witness’
silence is justified.” Highgate, 521 F.3d at 594 (quotation omitted).
The district court has not made such a decision here. It has neither conducted a question-
by-question inquiry nor concluded that appellants would invoke the privilege in response to
every question asked. While the district court allowed appellants to invoke the privilege at the
now-finished trial, this was merely a practical acknowledgement that appellants were not going
to testify, notwithstanding the district court’s opinion to the contrary. It did not flow from a
determination that appellants are actually eligible to invoke the privilege, as we determine today.
And while the district court appears to have recognized the overlap between appellants’
testimony and the pending criminal prosecutions, Sherrod, Teed, Vanderhagen & Ware,
2022 WL 834009 at *3 (“Because movants are under criminal indictment for the very conduct at
issue in this civil case, there is no question that they would ordinarily be entitled to their
silence.”), this passing comment is no substitute for the decision required. Even if the district
court’s comment indicates that appellants can and will invoke the privilege as to every question
posed to them, that court nonetheless retains its discretion to call appellants to testify and
conduct a Fifth Amendment analysis on the stand. Because we are a “a court of review, not first
view,” Taylor v. City of Saginaw, 11 F.4th 483, 489 (6th Cir. 2021) (citation omitted), we
remand the issue of whether appellants are entitled to a blanket assertion of the privilege to the
district court to decide in the first instance.
IV.
In our adversarial justice system, a party has the responsibility to “produce the evidence
against [another] by its own independent labors.” Miranda v. Arizona, 384 U.S. 436, 460 (1966).
The Fifth Amendment is thus grounded on this “overriding thought:” that a witness “is
guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his
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own will.’” Id. (quoting Malloy, 378 U.S. at 8.). Appellants here voluntarily waived their
privilege by sitting for their depositions, and appellees had the opportunity to determine the
scope of that waiver through cross-examination. But once that testimonial event concluded, the
Fifth Amendment again protected appellants, absent a further waiver. We thus hold that
appellants’ deposition waivers did not waive the privilege at trial because the waiver extended
only through the end of cross-examination at their depositions.
Therefore, we vacate the district court’s order denying the motions to quash and remand
for further proceedings consistent with this opinion.
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____________________________________________________
CONCURRING IN PART AND IN THE JUDGMENT
____________________________________________________
THAPAR, J., concurring in the introduction, section III.G, and section IV of Judge
Griffin’s opinion and in the judgment.
This appeal presents two questions. First: Is this case moot? For the reasons below, I
conclude it is and would hold we lack jurisdiction. But my colleagues hold we have jurisdiction,
so we must proceed to the second question: Are appellants entitled to invoke their Fifth
Amendment right to remain silent at trial, or did they waive that right by testifying at their
depositions? Because appellants’ waiver extends only through cross-examination, appellants can
invoke the Fifth Amendment when called to testify anew at trial. Thus, I agree with Judge
Griffin on the bottom line. I write separately, however, to explain my thinking on both mootness
and the merits.
I.
Jurisdiction first. In my view, this case is moot. Thus, I would vacate the district court’s
order denying the motion to quash and remand with instructions to dismiss as moot. See United
States v. Munsingwear, 340 U.S. 36, 39–41 (1950).
The procedural history is key to the mootness question here. Appellants are government
officials called to testify as non-party witnesses in the civil litigation concerning the Flint Water
Crisis. Invoking the Fifth Amendment, appellants moved to quash subpoenas compelling their
testimony at trial. The district court denied the motions, but the witnesses still refused to testify.
Rather than holding the witnesses in contempt, the district court certified the Fifth Amendment
question underlying the motions to quash for our review.
One problem: The subpoenas applied to the underlying trial. See Fed. R. Civ. P.
45(a)(ii)–(iii). And that trial is now over. That means the subpoenas at issue can no longer be
used to compel appellants to testify. Without subpoenas to quash, “it is impossible for [our]
court to grant any effectual relief whatever.” Chafin v. Chafin, 568 U.S. 165, 172 (2013). Thus,
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this case is moot unless saved by an “exception” to mootness doctrine. On this much, my
colleagues and I all agree.
Unlike my colleagues, I do not believe the “capable-of-repetition-yet-evading-review”
exception saves the day. That exception applies only if (1) the challenged action can’t be fully
litigated before it expires (evading review), and (2) there’s a “reasonable expectation that the
same complaining party would be subjected to the same action again” (capable of repetition).
Weinstein v. Bradford, 423 U.S. 147, 149 (1975).1 Here, all agree this case is capable of
repetition: Indeed, appellees confirm they plan to subpoena these same government witnesses in
future bellwether trials. So the sole question is whether the Fifth Amendment question evades
review.
It does not. Evading-review analysis is forward looking. See 13C Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure §§ 3533.8, 3533.8.2 (3d ed.). And here, even
if the Fifth Amendment question evaded review in this case, there are multiple routes for
effective review in the future.
For one, the district court could stay the proceedings. An issue does not “evade review”
when the appealing party can seek a stay. See United States v. Taylor, 8 F.3d 1074, 1076–77
(6th Cir. 1993). In this case, appellants never moved to stay the proceedings pending appeal.
But they could have and can in the next case.
For another, the district court could hold appellants in contempt. If held in contempt,
appellants could “obtain full review of [their] claims before undertaking any burden of
compliance with the subpoena.” United States v. Ryan, 402 U.S. 530, 533 (1971) (explaining the
proper route to interlocutory appeal of a motion to quash is from a contempt order). Either of
these avenues would suffice for appellate review in the next case.
My colleagues dismiss these possibilities. They predict that future litigation will proceed
too quickly to ensure effective review. But timing alone is insufficient to satisfy the evading-
1
While some have suggested the evading-review prong is merely prudential, we’re bound by circuit
precedent to treat both prongs of the exception’s test as justified by Article III. Compare Honig v. Doe, 484 U.S.
305, 341 (1988) (Scalia, J., dissenting), with Kentucky v. U.S. ex rel. Hagel, 759 F.3d 588, 596 n.3 (6th Cir. 2014).
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 44
review prong. What matters is whether there’s something “inherent in the type of injury alleged”
that deprives the parties and the district court of an opportunity to preserve the question for
review. In re Kulp Foundry, Inc., 691 F.2d 1125, 1130 (3d Cir. 1982). In the future bellwether
trials in this matter, the district court has the needed tools to allow for effective review before
mootness occurs. It is true this may not be the most efficient route. But efficiency is not an
exception to Article III.
Finally, my colleagues emphasize fairness concerns. They note appellants acted
diligently and suggest appellants deserve a decision on the merits since the mootness problem is
not their fault. But mootness frequently occurs through no fault of either party. If it occurs
while an appeal is pending, the proper remedy is vacatur, which “clears the path for future
relitigation of the issues.” Munsingwear, 340 U.S. at 40. And fairness alone does not justify
exercising judicial authority when jurisdiction is lacking.
Thus, this case is moot and no exception can rescue it. But my colleagues conclude
otherwise. They then proceed to part ways on the merits. That puts me in a curious position.
I don’t think we should proceed to the merits at all. But if I say nothing on the merits, the court
would (1) hold we have jurisdiction, and then (2) fail to decide the case. That we cannot do. See
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.) (“We have no more
right to decline the exercise of jurisdiction which is given, than to usurp that which is not
given.”). Another way to think of it is as if we were filing two opinions. If the panel decided the
mootness question in one opinion, I would have dissented. But losing that issue would not
excuse me from participating in the next appeal. Because we must adjudicate the case in front of
us, I assume, “as I must in light of the [majority’s] decision, that the Court does have jurisdiction
of the appeal.” United States v. Vuitch, 402 U.S. 62, 98 (1971) (Blackmun, J., concurring in part
and concurring in the judgment).
II.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. Text and history reveal that when
answering a question might subject a witness to criminal liability, he may either invoke or waive
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his right to remain silent. But when he waives his right, that waiver doesn’t last forever: It lasts
only through cross-examination. Thus, appellants’ waivers at their depositions don’t extend to
trial.
A.
When analyzing the rights enshrined in our Constitution, we often start with English
common law. Why? Because that’s where many of those rights originated. In some instances,
the American founding fathers sought to protect rights recognized at common law. See, e.g.,
Ramos v. Louisiana, 140 S. Ct. 1390, 1395–96 (2020) (discussing common-law origins of the
Sixth Amendment jury-trial right); Bucklew v. Precythe, 139 S. Ct. 1112, 1127 (2019)
(discussing common-law origins of the Eighth Amendment prohibition on cruel and unusual
punishment). In other instances, the failure to protect certain rights in England revealed the
necessity of protecting those rights in our written Constitution. See, e.g., Morgan v. Fairfield
Cnty., 903 F.3d 553, 569–70 (6th Cir. 2018) (Thapar, J., concurring in part and dissenting in
part) (discussing “oppressive English search practices that inspired the founding generation to
adopt the Fourth Amendment”).
The English had good reason to be concerned about compulsory self-incrimination. Both
the English ecclesiastical courts and the Court of the Star Chamber employed the “ex officio
oath,” requiring an accused to swear to answer truthfully all questions that might be put to him—
without knowing what those questions might be. See John H. Langbein, The Historical Origins
of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047, 1073
(1994); see also Jones v. SEC, 298 U.S. 1, 28 (1936) (recognizing “compulsory self-accusation”
as “among those intolerable abuses of the Star Chamber, which brought that institution to an
end”). This was especially problematic for religious dissenters, as they were “typically guilty of
the nonconformist religious practices for which they were being investigated.” Langbein, supra,
at 1073. Anyone who refused this “inquisitional oath” could be held in contempt, imprisoned,
and even tortured. See id. at 1073, 1084–85; see also R. Carter Pittman, The Colonial and
Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L. Rev.
763, 773, 778 (1935).
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Many English citizens suffered under this oath. But one English dissenter named John
Lilburne—also known as “Freeborn John” for his spirited defenses of the rights of Englishmen—
is often credited for drawing the public’s focus to the importance of the right against self-
incrimination and the injustice of the oath procedure. See E.M. Morgan, The Privilege Against
Self-Incrimination, 34 Minn. L. Rev. 1, 9 (1949); John H. Wigmore, Privilege Against Self-
Crimination; Its History, 15 Harv. L. Rev. 610, 624–26 (1902). In 1637, Lilburne was accused
of importing seditious books from Holland. Brought before the Star Chamber, he refused to
answer incriminating questions under oath and decried “the injustice of forcing a man to be the
means of his own undoing.” Leonard W. Levy, Origins of the Fifth Amendment 271 (2d ed.
1986).2 The court found him guilty of contempt. See Lilburne’s Case, 3 How. St. Tr. 1315 (Star
Chamber 1637).
Lilburne’s sentence was severe: On a two-mile walk from prison to a pillory at
Westminster, he was tied to the back of a cart, stripped to the waist, and whipped every few
steps. At Westminster—beaten nearly to death, head clamped in the pillory—he addressed the
gathered crowd at length about their freeborn rights. He explained the Star Chamber oath was
“absolutely against the law of God; for that law requires no man to accuse himself.” Levy,
supra, at 277. But Lilburne’s suffering was not in vain. Some years later, the House of Lords
granted Lilburne reparation and vacated his sentence, declaring it “illegal, and most unjust,
against the liberty of the subject and law of the land.” Wigmore, supra, at 625. And for his
fellow countrymen, Lilburne’s advocacy helped secure the right against compulsory self-
incrimination at English common law.
The English legal tradition shaped the founding generation’s understanding and
appreciation of the right against compulsory self-incrimination. See, e.g., Federal Farmer No.
VI, in 2 The Complete Anti-Federalist 262 (Herbert J. Storing ed. 1981) (calling the right
2
Historians debate whether the right against compulsory self-incrimination was an English invention (as
Leonard Levy contends) or a European one. See Langbein, supra, at 1072 (describing scholarly debate); see also
Leonard W. Levy, Origins of the Fifth Amendment and Its Critics, 19 Cardozo L. Rev. 821 (1997) (responding to
criticism). But wherever the right originated, the English common-law tradition informed the right in America. See
R.H. Helmholz, Origins of the Privilege Against Self-Incrimination: The Role of the European Ius Commune, 65
N.Y.U. L. Rev. 962, 989–90 (1990) (“The privilege became a part of our law because the common lawyers took up
its cause, embraced, and expanded it. In this sense Levy is of course right to focus on the English common law.”).
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“unalienable or fundamental”); see also Brown v. Walker, 161 U.S. 591, 596–97 (1896)
(discussing the influence of English common-law right at the founding). Indeed, eight of the
original states included protections against compulsory self-incrimination in their founding-era
constitutions. See United States v. Hubbell, 530 U.S. 27, 52 (2000) (Thomas, J., concurring).
The Commonwealth of Virginia led the way in 1776, providing that no man could “be compelled
to give evidence against himself.” Id. (quoting Virginia Declaration of Rights § 8 (1776)). The
states that followed all likewise framed the right as one against being compelled to “give
evidence” or “furnish evidence” against oneself. See id.
Then came time to ratify the federal Constitution. Many feared that nothing in the new
Constitution prevented the use of torture to extract a man’s confession—a practice associated
with tyranny. See, e.g., Remarks by Patrick Henry in the Virginia Debates, in 3 The Debates in
the Several State Conventions on the Adoption of the Federal Constitution 447–48 (Jonathan
Elliot ed., 1891) (hereinafter “Elliot”). George Mason, who had drafted the Virginian self-
incrimination clause, explained that a clause “provid[ing] that no man can give evidence against
himself” would protect against such evils. Id. at 452. Other Anti-Federalists agreed: Just as it
had been necessary to include such protections in the state constitutions, it was “necessary under
the general government” to declare that no man shall “be compelled to accuse, or furnish
evidence against himself.” Brutus No. 2, in 2 The Complete Anti-Federalist 374–75 (Herbert J.
Storing ed. 1981).
In response, James Madison drafted the Fifth Amendment’s Self-Incrimination Clause.
His precise phrasing was a “linguistic innovation.” Richard A. Nagareda, Compulsion “to Be a
Witness” and the Resurrection of Boyd, 74 N.Y.U. L. Rev. 1575, 1605 (1999). But Madison’s
unique formulation was likely “synonymous with” the phrasing in the state constitutions and the
states’ proposals for the federal Bill of Rights. Hubbell, 530 U.S. at 53 (Thomas, J., concurring).
And like its state-constitution forerunners, the Fifth Amendment’s Self-Incrimination Clause
incorporated its “common-law backdrop.” Id. at 52; see also 3 Joseph Story, Commentaries on
the Constitution of the United States § 1782 (1st ed. 1833).
By including the Self-Incrimination Clause in the Bill of Rights, the framers affirmed that
the American system of justice would reject the historic abuses of the Star Chamber and “that
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diabolical institution, the Inquisition.” Remarks by Abraham Holmes in the Massachusetts
Debates, in 2 Elliot, supra, at 111. More than anything, the Self-Incrimination Clause reflects
the framers’ “judgment that in a free society, based on respect for the individual, the
determination of guilt or innocence by just procedures, in which the accused made no unwilling
contribution to his conviction, was more important than punishing the guilty.” Levy, supra, at
432.
B.
While the Fifth Amendment’s text tells us what right the framers secured, history
illuminates how the protection against compulsory self-incrimination was understood to operate
in practice. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 378 (1995) (Scalia, J.,
dissenting) (“Where the meaning of a constitutional text . . . is unclear, the widespread and long-
accepted practices of the American people are the best indication of what fundamental beliefs it
was intended to enshrine.”). In two famous cases, Chief Justice John Marshall understood the
right to apply when a witness’s answer might subject him to potential criminal liability. He
further understood that witnesses invoke the privilege on a question-by-question basis.
First, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), a handful of judges
nominated by outgoing President John Adams accused the new Jefferson administration of
preventing them from taking office by withholding their commissions to the bench. Before the
Supreme Court, Marbury’s counsel, Charles Lee, called to the stand Attorney General Levi
Lincoln, who had been entrusted with the commissions. Lincoln objected to answering some of
Lee’s questions, arguing that he “ought not to be compelled to answer any thing which might
tend to criminate himself.” Id. at 144. Chief Justice Marshall agreed that Lincoln was not
“obliged to state any thing which would criminate himself.” Id. Lincoln ultimately agreed to
answer all but one question—what had been done with the commissions. The Court concluded
“he was not bound to say.” Id. at 145. Lincoln may have burned the commissions. See Levy, 19
Cardozo L. Rev. at 859. But the Court recognized Lincoln’s right to keep that information to
himself.
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Second, a few years later, Chief Justice Marshall presided over the trial of Aaron Burr.
See United States v. Burr, 25 F. Cas. 38 (C.C.D. Va. 1807). After Burr assembled a small army
to secede, President Jefferson ordered his arrest for treason. Before the grand jury, the
government asked Burr’s private secretary, Charles Willie, if he understood a coded letter that
might contain evidence of treason. Willie declined to answer on grounds that answering might
incriminate himself. See id. at 40 (“To know and conceal the treason of another is misprision of
treason, and is punishable by law.”). Chief Justice Marshall concluded the privilege didn’t
apply, because the government’s particular question “refer[red] only to the present knowledge of
the cipher,” which alone couldn’t be used to prosecute Willie. Id.; see also Orin S. Kerr,
Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905, 944–45 (2021). So Willie
had to answer.
While these cases alone are not determinative, they do demonstrate how the privilege
against self-incrimination operated at the founding. They show that the right applies if a
witness’s answer might subject him to potential criminal liability. See, e.g., Burr, 25 F. Cas. at
39 (“There may be questions no direct answer to which could, in any degree, affect [the witness];
and there is no case which goes so far as to say that he is not bound to answer such questions.”).
And they demonstrate that a witness’s invocation of the privilege is evaluated on a question-by-
question basis—an approach our precedent likewise endorses. See, e.g., United States v. Mahar,
801 F.2d 1477, 1495–97 (6th Cir. 1986).
C.
“Like most rights, the right secured by the [Self-Incrimination Clause] is not unlimited.”
District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (interpreting the right secured by the
Second Amendment). The text itself includes a limitation relevant here: The Self-Incrimination
Clause “does not prohibit all self-incrimination but only compelled self-incrimination.” Akhil
Reed Amar & Renée B. Lettow, Fifth Amendment First Principles: The Self-Incrimination
Clause, 93 Mich. L. Rev. 857, 865 (1995). And there’s nothing compulsory about a witness
volunteering to testify against himself. From this we get the “waiver rule,” which provides that
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to the extent a witness has waived his right to remain silent, he can be compelled to provide an
incriminating answer.3
Historical practice reveals the waiver rule’s contours. See N.Y. State Rifle & Pistol
Assoc. v. Bruen, 142 S. Ct. 2111, 2128 (2022) (endorsing reliance on “historical understanding of
the Amendment to demark the limits on the exercise of th[e] right”). For more than a century,
courts repeatedly recited the same basic rule, in only slightly varying formulations: Voluntary
disclosure of a criminal transaction waives the privilege as to the details of that same criminal
transaction. But only that transaction—no others.4 See, e.g., Low v. Mitchell, 18 Me. 372, 374
(1841). Thus, if the witness “consents to testify to one matter tending to criminate himself, he
must testify fully in all respects relative to that matter so far as material to the issue. If he waives
the privilege, he does so fully in relation to that act.” Id. “But he does not thereby waive his
privilege of refusing to reveal other unlawful acts, wholly unconnected with the act, of which he
has spoken, even though they may be material to the issue.” Id.History reveals a temporal limit, too. Early cases that faced this question and specified a
limit identified cross-examination as the relevant stopping point. See, e.g, State v. K., 4 N.H.
562, 563 (1829) (explaining that once a witness waives his privilege with respect to “a particular
fact in favor of the respondent, he will be bound, on his cross examination, to state all the
circumstances relating to that fact”).5 To be sure, some nineteenth-century cases discussing
3
Here, “waiver” is a bit of a misnomer: So long as he testifies voluntarily, a witness may unintentionally
give up his right to remain silent, simply by failing to assert it. See 1 McCormick on Evid. § 133 (8th ed.); see also
Elhady v. Unidentified CBP Agents, 18 F.4th 880, 884 n.2 (6th Cir. 2021) (“[W]aiver is affirmative and intentional,
whereas forfeiture is a more passive failure to make the timely assertion of a right.” (quotation omitted)).
4
I use “transaction” because it tracks the terminology across numerous early sources. See, e.g., Dixon v.
Vale (1824) 171 Eng. Rep. 1195, 1195 (“[following waiver, the witness] is bound to answer all questions relative to
that transaction”); Foster v. Pierce, 65 Mass. (11 Cush.) 437, 437–38 (1853) (similar); Coburn v. Odell, 30 N.H. 540(1855) (similar); 1 Simon Greenleaf, Treatise on the Law of Evidence § 451 (Rees Welsh & Co. ed. 1896) (similar).
Some contemporaneous cases used criminal “act” or “matter” seemingly as a substitute for “transaction.” See, e.g.,
Chamberlain v. Willson, 12 Vt. 491, 493 (1840) (“matter”); Low, 18 Me. at 374 (using both “matter” and “act”);
Commonwealth v. Price, 76 Mass. 472 (1858) (“matter”). The terminology raises an additional question: Once
there’s a waiver, what constitutes the criminal “transaction” over which that waiver extends? That question is not
before us given our conclusion that appellants did not waive their rights for trial. But it may well arise in future
cases.
5
See also, e.g., East v. Chapman (1827) 172 Eng. Rep. 259, 261 (“[O]n his cross-examination . . . [the
witness] appealed to the Court to say if he was bound to answer. [The Court replied:] I think, having given
evidence, you must answer the question.”); Chamberlain, 12 Vt. at 493 (1840) (“[I]f he submit to testify about the
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waiver failed to specify for how long that waiver lasted. But not even those cases extended a
witness’s waiver beyond cross-examination.
In short, when a witness waives his right to remain silent, that waiver extends (1) only to
the details of the specific criminal transactions the witness voluntarily disclosed, and (2) only
through the end of cross-examination.
The rule supplied by historical practice makes sense given the Fifth Amendment’s
background and the context in which it was enacted. The framers sought to protect individual
liberty from tyrannical government. That liberty included a witness’s voluntary choice to risk
prosecution by revealing his involvement in a crime. It would be up to the witness to evaluate
the risk and make a choice. But if a witness’s admission of one criminal transaction would allow
the government to compel his admission of other criminal transactions, perhaps even ones the
witness didn’t expect to be asked about, by what means could the witness meaningfully evaluate
the risk? Cf. Coburn v. Odell, 30 N.H. 540, 566 (1855). So too if waiver were understood to
extend beyond cross-examination—for example, from a deposition on one date to a trial months
later. That’s because after a witness has testified once, testifying again almost always exposes a
witness to the new risk of “reveal[ing] other unlawful acts, wholly unconnected with the act, of
which he has spoken.” Low, 18 Me. at 374. Every time he takes a subsequent oath, a witness
“risks the possibility of perjury charges in addition to any risk he may face for prosecution for
non-perjury offenses suggested by his testimony.” In re Morganroth, 718 F.2d 161, 166 (6th
Cir. 1983). Even if the questions are identical the second time around, the witness faces new
very matter tending to criminate himself, without claiming his privilege, he must submit to a full cross-
examination.”); Foster, 65 Mass. at 439 (same); Price, 76 Mass. at 476 (similar); Town of Norfolk v. Gaylord, 28
Conn. 309, 312–13 (1859) (“[I]f he voluntarily testifies in chief, he waives his privilege, and must submit to the
consequent cross-examination.”); Connors v. People, 50 N.Y. 240, 242 (1872) (similar); State v. Wentworth, 65 Me.
234, 240 (1875) (“The defendant . . . waived his constitutional privilege. He then subjected himself to the peril
consequent upon a cross-examination as to all matters pertinent to the issue.”); Lockett v. State, 63 Ala. 5, 11 (1879)
(“It can not be tolerated that a person testifying, after stating material facts bearing upon the case, and favorable to
one party, shall, when cross-examined in reference to the same subject, decline answering by reason of his privilege
not to incriminate himself.”); People v. Freshour, 55 Cal. 375 (1880) (“[W]hen a witness voluntarily testifies in
chief on a particular subject, he may be cross-examined on that subject, even though his answers may criminate or
disgrace him.”); Ex parte Senior, 37 Fla. 1, 22 (1896) (“[I]f a witness, with full knowledge of his rights, consents to
testify about the very matter that may criminate him, without claiming his privilege, he must submit to a full,
legitimate cross-examination in reference thereto.”).
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danger. The limitations history supplies mitigate that risk, consistent with the founders’
understanding of the right.
* * *
Applying the foregoing to the instant case, the text and history reveal that the appellants
can invoke their right to remain silent at trial because their waivers don’t extend beyond cross-
examination at their depositions. On remand, the district court should analyze the questions
appellees propose to ask and determine whether appellants’ invocation of the Fifth Amendment
in response to specific questions is justified.
III.
There are, of course, other ways to analyze the question presented in this case. But those
analyses are not grounded in text and history. Nor do they supply sufficient reason to disregard
appellants’ right to remain silent at trial.
A.
One way to resolve this case is by employing what I’ll call the “proceeding-specific
rule,” but I would not endorse that rule or rely on it to alter my conclusion. The rule provides
that “[a] witness’s loss of the privilege by testifying applies throughout but not beyond the
‘proceeding’ in which the witness gave the incriminating testimony.” McCormick on Evid.
§ 133 (emphasis added). And it directs us to inquire: What counts as a single proceeding?
That question is a red herring. Having established the waiver extends only through cross-
examination, history tells us what questions we have left to ask: What criminal transactions has
the witness voluntarily disclosed, if any? What risks of prosecution has he assumed as a result?
By answering those questions, we can determine how far a witness’s waiver extends. Focusing
instead on the meaning of “proceeding” distorts the Fifth Amendment’s protections.
So if figuring out the meaning of “proceeding” is asking the wrong question, why ask it?
Some twentieth-century caselaw is to blame. Throughout much of the twentieth century, most
courts properly understood that a waiver at one time didn’t extend to another. See, e.g., In re
Neff, 206 F.2d 149, 152 (3d Cir. 1953) (“[W]hether or not [the witness] may claim [the privilege]
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is to be determined without reference to what he said when testifying as a witness on some other
trial, or on a former trial of the same case, and without reference to his declarations at some other
time or place.”); John Henry Wigmore, Wigmore’s Code of the Rules of Evidence in Trials at
Law § 2377–78 (3d ed. 1942) (“A waiver by taking the stand (1) at one trial is not a waiver for a
later trial, (2) and a waiver at a preliminary and separate proceeding is not a waiver for the main
trial.”).
But as too often occurs, key language lost its context. Two Supreme Court cases reveal
what went wrong. First came Rogers v. United States, 340 U.S. 367 (1951), involving a former
Treasurer of the Denver Communist Party. Before a grand jury, Rogers freely admitted her
involvement in the Communist Party—an admission which “tend[ed] to criminate [her] under the
Smith Act.” Id. at 372. But she refused to name her successor. Rogers testified twice during the
grand jury proceedings: The first time, she declined to answer because she didn’t want to get
someone else in trouble. See id. at 368. The second time, she invoked the privilege against self-
incrimination to justify her refusal. Id. at 370. Both times, she was willing to disclose her own
incriminating conduct but unwilling to incriminate another. See id. at 381. The Supreme Court
held that the Fifth Amendment “would not justify her refusal” to name her successor. Id. at 371.
And even assuming the privilege could justify Rogers’s silence, the Court concluded she had
waived it: After her “admission that she held the office of Treasurer of the Communist Party of
Denver, disclosure of acquaintance with her successor presents no more than a ‘mere imaginary
possibility’ of increasing the danger of prosecution.” Id. at 374–75 (quotations omitted); see also
id. at 373 (“Disclosure of a fact waives the privilege as to details.”).
Later came Mitchell v. United States, 526 U.S. 314 (1999), in which the Supreme Court
held that a defendant’s waiver of her Fifth Amendment right at a plea hearing did not extend to
her sentencing hearing. See id. at 321. That holding is consistent with original understanding
and solidifies the long-admitted intuition that a witness needn’t testify to the same thing he
testified to earlier. But writing for the Court, Justice Kennedy cited Rogers for the “well-
established” proposition that “a witness, in a single proceeding, may not testify voluntarily about
a subject and then invoke the privilege against self-incrimination when questioned about the
details.” Id. (emphasis added). That phrasing shifted the inquiry. Whereas our task used to be
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defining the scope of a waiver within one instance of testimony, it’s become defining the
meaning of “proceeding” to determine whether a waiver at one time extends to another. See,
e.g., McCormick on Evid. § 133.
Neither Rogers nor Mitchell requires us to endorse this “proceeding-specific rule.” The
Rogers Court held only that the witness’s refusal to name her successor was not covered by the
privilege. See 340 U.S. at 371–72. And the Mitchell Court held only that the defendant’s waiver
at a plea hearing did not extend to her sentencing hearing. See 526 U.S. at 321. Neither holding
extends the waiver from one testimonial event to another. So I would not accept the
“proceeding-specific rule” at face value. Nor would I apply it to deprive the witnesses here of
their right to remain silent at trial.
B.
Policy rationales don’t compel a different conclusion either. Of course, our policy
judgments must bow to those enshrined in the Constitution. And neither policy rationale put
forward in this case supplies a reason to disregard the Fifth Amendment’s text and history.
1.
One is the “distortion-of-truth” rationale. Because a witness prevents the factfinder from
hearing at least some aspect of the truth after invoking the privilege to remain silent, proponents
of this rationale seek to stretch the legal framework by requiring fuller disclosure. And they
have some Supreme Court backing. Precedent recognizes that the Fifth Amendment shouldn’t
become a “tool” to manipulate the truth. See, e.g., Mitchell, 526 U.S. at 322; Rogers, 340 U.S. at
371; Brown v. United States, 356 U.S. 148, 156 (1958). But here, there are at least three reasons
to hesitate before relying on this rationale to conclude appellants’ waiver extends from
deposition to trial.
First, the distortion-of-truth rationale is a relatively recent invention. Earlier in our
history, witnesses could claim the Fifth Amendment’s “protection at any stage of the inquiry
whether he has already answered the question in part, or not at all.” 1 Simon Greenleaf, Treatise
on the Law of Evidence § 451 (Rees Welsch & Co. ed. 1896). A witness who invokes his right
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to remain silent halfway through answering a question will surely give the jury a less-than-
complete look at the truth. But before the mid-twentieth century, courts seemed less troubled by
that possibility. See McIntyre, 514 U.S. at 372–74 (Scalia, J., dissenting) (recognizing evidence
of historical practice “at the time of adoption” as more probative than “more modern
phenomen[a]”). And even when the Supreme Court has expressed concerns about a witness’s
ability to distort the truth, the Court has never held that a waiver extends from deposition to trial.
See, e.g., Brown, 356 U.S. at 156.
Second, district courts have various tools to prevent parties from benefitting by distorting
the truth. See id. at 160 (Black, J., dissenting). For example, a court may strike a witness’s
testimony and instruct the jury to disregard it. When “prejudice to the opposing party [is]
extreme and irremediable the court might even enter judgment in [the opposing party’s] favor.”
Id. By such means, the district court can ensure a fair trial without “treat[ing the witness] as
having waived his privilege[.]” Id. True, even careful case management can’t stop parties from
gaming the discovery process with the Fifth Amendment.6 But our job is to apply the rule the
Fifth Amendment supplies—even if we find it wanting.
Third, it’s true the founders recognized the virtue of getting to the truth. But they also
limited the tools our government can use to get there, recognizing other interests at play. The
Fifth Amendment itself is just one example of such limitations; the Fourth Amendment is
another. Looking to text and history provides a way to uncover the balance the Constitution
struck between these competing interests. And this method provides greater stability than any
method that relies solely on judicial evaluations of what makes good policy sense.
2.
A second policy justification might be named the “fairness rationale” or “reason-to-know
rule.” The basic idea: It’s fair to hold a witness to an earlier waiver if he made “testimonial,
incriminating statements” and “plainly ha[d] reason to know, when he [did] so, that these
6
And here, of course, appellants have not gamed the discovery process. Each of the appellants agreed to be
deposed between May and September 2020. At that time, no appellant was under indictment. But by the time they
were called to testify at the first bellwether trial, all five appellants had been indicted.
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statements may be interpreted as a waiver of his fifth amendment privilege against self-
incrimination.” Klein v. Harris, 667 F.2d 274, 288 (2d Cir. 1981).
There are several problems with this rationale. For one, it disregards the risk of further
incrimination witnesses face each time they testify. For another, it lacks a clear limiting
principle: If what matters is whether the witness had “reason to know” he was waiving his
privilege, why draw the line at “single proceeding,” instead of holding the witness to his waiver
indefinitely?
Finally, this “fairness rationale” is just another policy judgment incapable of displacing
the policy judgment the People enshrined in the Fifth Amendment’s text. It may well be in the
interest of fairness to indefinitely hold a witness to a waiver he had “reason to know” he was
making. But we’re bound to follow the rules supplied by the Constitution, whether we like them
or not.
IV.
The text and history of the Fifth Amendment make clear that witnesses may invoke their
right against compulsory self-incrimination when answering might expose them to criminal
liability. And once a witness waives his right to remain silent, that waiver extends (1) only to the
details of the specific criminal transactions disclosed, and (2) only through the end of cross-
examination. By focusing on “proceeding” and policy concerns, courts have unjustifiably
expanded the scope of waiver and contracted the protection of the right. Honoring the founders’
understanding today compels the conclusion that appellants may invoke the Fifth Amendment at
trial. Such a conclusion would be uncontroversial then, as it should be now.
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______________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
______________________________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
Tens of thousands of residents of Flint, Michigan were impacted by exposure to lead and
other contamination in the city’s water supply. In the wake of what is now infamously known as
the Flint Water Crisis, plaintiffs in this case, four minor children, brought civil suits against a
group of public officials and two water engineering firms allegedly involved in the debacle.
During discovery, plaintiffs deposed five officials who are the appellants in this case: former
Governor Richard Snyder; his advisor, Richard Baird; two former City of Flint Emergency
Managers, Darnell Earley and Gerald Ambrose; and the former City of Flint Director of Public
Works, Howard D. Croft. All sat and answered questions for hours. None invoked their Fifth
Amendment privilege against self-incrimination. After being deposed, however, these five
officials were indicted on various charges stemming from the Crisis. That led each official to
change their mind and invoke their Fifth Amendment privileges at the civil trial, which has since
ended in a mistrial.
This interlocutory appeal raises the question of whether the fact that the appellants
testified in their respective depositions resulted in their having waived their Fifth Amendment
privileges for the civil trial on the subject matter about which they previously testified. The
district court determined that they did. See Sherrod, Teed, Vanderhagen & Ware v. VNA, No.
5:17-CV-10164-JEL-KGA, 2022 WL 834009 (E.D. Mich. Mar. 21, 2022). Although I agree
with Judge Griffin that the issue is not moot, and concur in section II of his opinion, I write
separately because I believe that the district court did not err in determining that the appellants
waived their Fifth Amendment privileges. I therefore respectfully dissent.
A. Fifth Amendment Principles
To understand why the district court did not err requires a wide-ranging tour of Fifth
Amendment doctrine. The Fifth Amendment provides that “[n]o person . . . shall be compelled
in any criminal case to be a witness against himself.” U.S. Const. amend. V. “The privilege
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afforded not only extends to answers that would in themselves support a conviction under a
federal criminal statute but likewise embraces those which would furnish a link in the chain of
evidence needed to prosecute the claimant for a . . . crime.” Hoffman v. United States, 341 U.S.
479, 486 (1951). In accordance with this logic, the privilege extends beyond when a person is
“involuntarily called as a witness against himself in a criminal prosecution” and “also privileges
him not to answer questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal proceedings.” In re
Morganroth, 718 F.2d 161, 164–65 (6th Cir. 1983).
This privilege, however, can be waived. “It is well established that a witness, in a single
proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-
incrimination when questioned about the details.” Mitchell v. United States, 526 U.S. 314, 321
(1999) (emphasis added). (I will return to the significance of the emphasized phrase below.)
Instead, “[t]he privilege is waived for the matters to which the witness testifies, and the scope of
the ‘waiver is determined by the scope of relevant cross-examination.’” Id. (quoting Brown v.
United States, 356 U.S. 148, 154–55 (1958)). Aside from live testimony, courts have also held
that discovery and evidentiary materials, such as affidavits, operate “like other testimonial
statements to raise the possibility that the witness has waived the Fifth Amendment privilege” for
the rest of the civil proceeding. In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991); cf. United
States v. Parcels of Land, 903 F.2d 36, 43–44 (1st Cir. 1990).
The justifications for this waiver rule are twofold. See generally Rogers v. United States,
340 U.S. 367, 371–75 (1951); Klein v. Harris, 667 F.2d 274, 287–88 (2d Cir. 1981); United
States v. Yurasovich, 580 F.2d 1212, 1218–20 (3d Cir. 1978); Note, Testimonial Waiver of the
Privilege Against Self-Incrimination, 92 HARV. L. REV. 1752, 1753–54 (1979). First, although
the Fifth Amendment’s privilege against self-incrimination necessarily limits the amount of
evidence that courts receive, it is not a tool that a witness may use to distort the truth. See
Mitchell, 526 U.S. at 322. By preventing witnesses who present their side of the story from then
asserting silence in the face of the opposing party’s inquiries into the divulged facts, the waiver
rule protects both the “trustworthiness of the statements” and “the integrity of the factual
inquiry.” Id. Without this rule, witnesses could use the Fifth Amendment to shape the truth
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rather than shield it. Thus, courts enforce the waiver rule when necessary to avoid “prejudice to
a party to the litigation.” Klein, 667 F.2d at 288 (citing E.F. Hutton & Co. v. Jupiter Dev. Corp.,
91 F.R.D. 110, 116 (S.D.N.Y. 1981)).
Along with this distortion-of-the-truth rationale, there is a further-incrimination rationale.
When a witness’s prior statements were both “‘testimonial,’ meaning that they were voluntarily
made under oath in the context of the same judicial proceeding,” and “incriminating,” meaning
that they “directly inculpated the witness on the charges at issue,” then those statements are
naturally the kind that would “likely influence the finder of fact.” Id. In such circumstances, it
is fair to conclude that the witness had “reason to know” that they were giving up the protections
of the privilege as to relevant details of their disclosures, and to hold the witness to that
knowledge. Id.In this way, a “waiver” in the context of the Fifth Amendment privilege against self-
incrimination signifies something different than the term does in other contexts. For example,
defendants must make a “knowing and intelligent” relinquishment of their Miranda rights before
a court will deem those rights to be waived. Garner v. United States, 424 U.S. 648, 657 (1976).
But whereas waiver for the purposes of Miranda operates on the assumption that the right is one
that the defendant must renounce to lose its protections, the privilege against self-incrimination is
a right that the defendant must assert to gain its protections. If a witness seeks refuge in the
privilege, then “he must claim it or he will not be considered to have been ‘compelled’ within the
meaning of the Amendment.” Id. at 654–55 (quoting United States v. Monia, 317 U.S. 424, 427
(1943)). Despite the need for courts otherwise to “indulge every reasonable presumption against
waiver of fundamental constitutional rights,” Emspak v. United States, 349 U.S. 190, 198 (1955)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), “an individual may lose the benefit of the
[Fifth Amendment] privilege without making a knowing and intelligent waiver.”1 Minnesota v.
Murphy, 465 U.S. 420, 428 (1984) (quoting Garner, 424 U.S. at 654 n.9).
1
Although the foregoing shows why the use of the term “waiver” is, as the Supreme Court has
acknowledged, imprecise in this context, see Minnesota v. Murphy, 465 U.S. 420, 427–28 (1984), the term remains
prevalent in self-incrimination cases, see, e.g., Mitchell, 526 U.S. at 321; Convertino v. U.S. Dep’t of Just., 795 F.3d
587, 596 (6th Cir. 2015). For this reason, I employ the word throughout.
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Once lost, however, when can the privilege be recovered? The Supreme Court has held
that the waiver lasts for the course of (here is that phrase again) “a single proceeding.” Mitchell,
526 U.S. at 321. But that raises a new question: what constitutes a “single proceeding?” Fifth
Amendment doctrine demands a different answer to that question than the lead opinion reaches.
B. Extent of a “Single Proceeding”
In ruling that the appellants had waived their Fifth Amendment privileges, the district
court reasoned that the Supreme Court had determined in Mitchell that a witness waives their
Fifth Amendment rights for the entirety of (that phrase returns yet again) “a single proceeding.”
Sherrod, Teed, Vanderhagen & Ware, 2022 WL 834009, at *3 (quoting Mitchell, 526 U.S. at
321). It followed that because depositions “are simply some of the ‘events between the time of
commencement and the entry of judgment’ that together make up this single civil action,” the
appellants’ failure to invoke their Fifth Amendment privileges at the deposition stage also
doomed to failure their blanket attempts to assert those privileges at trial. Id. at *5.
Determining whether the district court was correct is not a straightforward task. Some
courts have indicated that a witness who waives their Fifth Amendment privilege during a
deposition also waives it for the trial that follows. See, e.g., Creative Consumer Concepts, Inc. v.
Kreisler, 563 F.3d 1070, 1081 (10th Cir. 2009); Microfinancial, Inc. v. Premier Holidays Int’l,
Inc., 385 F.3d 72, 78 (1st Cir. 2004); United States v. White, 846 F.2d 678, 690 (11th Cir. 1988);
see also In re Candor Diamond Corp., 42 B.R. 916, 920 (Bankr. S.D.N.Y. 1984). A few courts
have directly held this. See De Lisi v. Crosby, 402 F.3d 1294, 1301 (11th Cir. 2005); Moser v.
Heffington, 214 A.3d 546, 558 (Md. 2019). One court has reached the opposite conclusion,
albeit on analogous state law grounds. See State v. Roberts, 622 A.2d 1225, 1235 (N.H. 1993).
Other courts have suggested that they might come to the same result if pressed. See United
States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir. 1978); People v. Williams, 181 P.3d 1035,
1059 (Cal. 2008). The Sixth Circuit has not yet addressed this issue.
Because of the conflicting authorities, a return to basics provides guidance. In addition to
reaffirming the well-established rule “that a witness, in a single proceeding, may not testify
voluntarily about a subject and then invoke the privilege against self-incrimination when
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questioned about the details,” the Supreme Court in Mitchell also examined how this rule
governs the relationship between a plea colloquy and a sentencing hearing. 526 U.S. at 321.
The Court held that neither a defendant’s guilty plea nor their statements during their plea
colloquy functioned as a waiver during their sentencing hearing. Id. at 325. How the Court
reached this conclusion is instructive.
As Mitchell indicated, the purposes of a plea colloquy and a sentencing hearing are
distinct. A plea colloquy’s purpose “is to protect the defendant from an unintelligent or
involuntary plea,” thus making the defendant’s testimony vital, while a sentencing hearing fixes
the severity of the punishment that accompanies guilt. Id. at 322. In other words, the Supreme
Court contemplated the purposes of each hearing in Mitchell, found them to be divergent, and
thus concluded that the defendant had not waived her privilege for the sentencing hearing.
Although the Court did not conclusively decide whether the two hearings were part of a “single
proceeding,” its conclusion suggests that they are not.
The Supreme Court’s focus on purpose for discerning a proceeding’s boundaries makes
sense given the waiver rule’s nature. Both the distortion-of-truth rationale and the further-
incrimination rationale rely on the fairness of requiring a witness to answer further questions
once they have provided sworn statements. In the case of the distortion-of-truth rationale, the
absurdity of using the Fifth Amendment either to provide only partial, and possibly self-serving,
truths or to distort the factfinding process is so obvious that there is nothing unfair about
disallowing those practices. See id. at 322. The witness instead has “reason to know” that
invoking the privilege in such a manner would be unduly prejudicial and will thus not be
allowed. E.F. Hutton & Co., 91 F.R.D. at 116; see also Klein, 667 F.2d at 288. Likewise, it is
not unfair to require further testimony as to incriminating details once a witness chooses to
testify about incriminating facts. In that instance, too, the witness had “reason to know” of the
risks that their testimony could provide fodder for criminal prosecution. Klein, 667 F.2d at 288.
The lead opinion criticizes this reference to Klein’s “reason to know” standard, because
Klein concerns whether a waiver had occurred, and not how to determine the scope of a waiver.
Id. at 287. But the considerations involved in questions of waiver necessarily inform the scope
of a waiver. And these fairness considerations indicate why purpose matters. Holding witnesses
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to their waiver is fair when—and only when—they have reason to know of its future
applicability. That is considerably easier in instances when the comparable points in time share
similar legal ends than when they do not. Such similarity ensures that the witness is on notice
that their testimony will continue to bear on a case when they initially provide the testimony.
To illustrate the point, consider a witness who is deposed in a civil foreclosure
proceeding and then later is deposed in a separate case involving allegations that a fiduciary
imprudently managed assets on behalf of a pension fund. See In re Morganroth, 718 F.2d at163–64. The witness answers questions freely in the deposition for the foreclosure case. See id.
at 163. But the fiduciary case is different. When the lawyers in that case want to depose the
witness and inquire along similar lines as in the foreclosure case, the witness invokes the Fifth
Amendment. See id. at 164. In that instance, it would be unfair to conclude that the witness had
reason to know when they sat for the first deposition that their testimony would constitute a
waiver in the second deposition. Nothing about the discovery in the foreclosure case would
necessarily have led the witness to be on notice about discovery in another case that may not
have even been filed at the time.
That analysis leads in the opposite direction when the two points in time are a deposition
and the trial for which it was prepared. Why a civil party conducts a deposition is no secret.
Like many other discovery devices, the goal of a deposition is to produce “relevant evidence
which is useful in determining the merits of the claims asserted by the parties” in anticipation of
trial. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741 (1975). As both the Supreme
Court long ago recognized and practitioners have since become well aware, depositions keep
federal civil trials from being “carried on in the dark” by allowing “the parties to obtain the
fullest possible knowledge of the issues and facts before trial.” Hickman v. Taylor, 329 U.S.
495, 501 (1947); see also, e.g., John H. Langbein, The Disappearance of Civil Trial in the
United States, 122 YALE L.J. 522, 551 (2012) (noting that depositions provide “the litigants a
detailed advance view of what the issues and the evidence would be (on both or all sides) were
the case to go to trial”); Alexander Holtzoff, The Elimination of Surprise in Federal Practice,
7 VAND. L. REV. 576, 578 (1954) (The Federal Rules of Civil Procedure “permit[] the use of
discovery not only for the purpose of obtaining evidence, but also of ascertaining where evidence
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may be secured.”). Questions asked at a deposition may not be asked again at trial, but they are
initially posed only because trial loomed on the horizon.
With that in mind, the need for a deponent to preserve their Fifth Amendment privilege
during a deposition is not obscure. When conducted by oral examination, as done in the
appellants’ cases, depositions produce evidence in a form analogous to a civil trial: parties
testify under oath, their lawyers are present to conduct examinations and cross-examinations, and
the testimony is recorded by an authorized individual. FED. R. CIV. P. 30(c)(1). Also akin to
when a witness is examined at trial, attorney-client exchanges are limited during a deposition,
though counsel “may instruct a deponent not to answer . . . when necessary to preserve a
privilege.” FED. R. CIV. P. 30(c)(2). Rule 30’s reminder to be watchful of privileges is apt.
Once conducted, a deposition takes on a life of its own—“[a]t a hearing or trial, all or part of a
deposition may be used against a party” so long as certain conditions are met. FED. R. CIV. P.
32(a)(1).
Among their many uses, depositions can help to sidestep the need for trial altogether.
Federal Rule of Civil Procedure 56(c)(1)(A) directs parties to cite depositions in their motions
for summary judgment, and parties routinely follow this direction. See, e.g., Viet v. Le, 951 F.3d
818, 824–25 (6th Cir. 2020); Keller v. Miri Microsystems LLC, 781 F.3d 799, 805 (6th Cir.
2015); Alexander v. CareSource, 576 F.3d 551, 560–61 (6th Cir. 2009). If the district court
agrees that summary judgment should be granted on any of the claims, then “the movant is
entitled to judgment as a matter of law” as to those claims. FED. R. CIV. P. 56(a). Harmful
admissions and other testimony given in a deposition can, and often do, settle whether a dispute
of material fact exists for this purpose. See, e.g., Noble v. Time Ins. Co., No. CIV. 11-345-
GFVT, 2013 WL 1964819, at *3 (E.D. Ky. May 10, 2013); Home Bank of Tennessee v. Beams,
No. 3:06-CV-191, 2007 WL 3287297, at *4 (E.D. Tenn. Nov. 5, 2007). This possibility
combined with the other features of a deposition make it clear that if a deponent has information
that the Fifth Amendment can shield, then they should invoke their privilege rather than testify.
All this also makes it clear that a deponent’s failure to invoke the privilege will haunt
them come trial. Unlike in criminal law where an intuitive line (one clearly marked by a verdict)
can be drawn between the purposes of the guilt phase and the purposes of the sentencing phase,
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the aims that animate depositions and a trial in civil litigation blur together. Cf. Mitchell,
526 U.S. at 322–25. Despite the lead opinion’s empty protestations that the purposes of a
deposition and a civil trial are divergent, both serve to produce evidence relevant to the claims
and defenses listed in the complaint and the answer with the aim to determine whether a party
will be held liable. See 75 AM. JUR. 2d Trial §§ 1–2 (2022). Either can end up with the court
entering an adverse judgment against a party. Of course, a trial aims to settle the matter of
liability definitively whereas a deposition only facilitates this aim. But a deponent cannot
reasonably be surprised when they are called to testify at trial about matters covered in their
deposition, especially when the deponent was a party to the suit as four of the five appellants
here had been. That possibility was present the moment the deponent was subpoenaed for the
deposition. Fundamentally, then, the district court was correct to conclude that a deposition and
a trial for which it was prepared are part of a single proceeding.
The principles underlying the Fifth Amendment’s waiver rule further bolster my
conclusion. On the one hand, the rule recognizes that the privilege is a shield that protects
information, not a sword with which to “mutilate” it. Brown, 356 U.S. at 156. To this end,
courts disfavor various strategies used to game the discovery process with the Fifth Amendment.
Parties risk having affidavits filed in opposition to summary judgment stricken if they refuse to
answer related questions at a subsequent deposition. See In re Edmond, 934 F.2d at 1308–09;
Parcels of Land, 903 F.2d at 43–44. Parties also risk being barred from testifying if they invoke
their privilege against self-incrimination in response to interrogatories or deposition only to try to
testify at trial. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 577 (1st Cir. 1989); see also
United States v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y.,
55 F.3d 78, 85 (2d Cir. 1995) (barring party from submitting in evidence “any material
previously claimed by him to be within the privilege against self-incrimination”); Traficant v.
Comm’r, 884 F.2d 258, 265 (6th Cir. 1989) (barring party, after his invocation of the privilege
against self-incrimination, “from introducing other evidence on that matter”). In any event, the
goal is to balance the interests of the party asserting the privilege with the need “to prevent unfair
and unnecessary prejudice to the other side.” S.E.C. v. Graystone Nash, Inc., 25 F.3d 187, 192
(3d Cir. 1994).
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That balance tips in favor of holding a deponent to their waiver come trial. Allowing a
witness to testify at a deposition only then to allow them in the forthcoming civil trial to invoke
their privilege against self-incrimination on the same subjects about which they were already
deposed would both give a witness insight into the questions that a party might ask at trial as
well as let the witness avoid providing follow-up answers based on the ones that they have
already given. Furthermore, unlike in cases when a court strikes an affidavit because the affiant
invoked their Fifth Amendment privilege at trial rather than testify about some subject matter
that was divulged in the affidavit, see, e.g., In re Edmond, 934 F.2d at 1308–09; Parcels of Land,
903 F.2d at 43–44, the same remedy is inadequate when a deponent has already learned
substantial information about the other side’s trial strategy by sitting for the deposition. That bell
cannot be unrung.
The lead opinion argues that the availability of cross-examination in a deposition is
sufficient to guard against these concerns. But this ignores the key function of the factfinder in
judging credibility. Under the lead opinion’s rule, the party who conducted the deposition is left
with presenting at trial either a transcript or a recording of the deposition, both being only partial
substitutes for live testimony in assessing another critical aspect of the truth—a witness’s
credibility. See, e.g., House v. Players’ Dugout, Inc., No. 3:16-CV-00594-RGJ, 2021 WL
4898071, at *14 (W.D. Ky. Oct. 20, 2021) (noting that it was “better for the jury to experience
these . . . witnesses’ testimony live, even if by video, than by pre-recorded trial deposition” in
order to judge credibility); FED. R. CIV. P. 32(a)(4)(E) (making unmistakable “the importance of
live testimony in open court”); 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & RICHARD L.
MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2142 (3d ed. 2022) (“Although the increasing
availability and fidelity of videotaped depositions has provided a better alternative than reading a
written transcription, the preference for live testimony is still endorsed by the federal courts.”
(footnote omitted)); 7 MOORE’S FEDERAL PRACTICE § 32.28 [3] (“The preference for oral
testimony by a present witness is of special concern when a case turns on the credibility of
testimony that is contradicted by other witnesses.”); see also Stoner v. Sowders, 997 F.2d 209,
213 (6th Cir. 1993) (noting in context of the Confrontation Clause that videotaped deposition “is
still a picture, not a life”). To avoid these problems, a waiver of the Fifth Amendment privilege
at a deposition should carry forward to a civil trial.
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Although it is true that the purpose of the Fifth Amendment is to prevent a witness from
being compelled to provide incriminating information against themselves, once the witness has
opened the prosecutorial door by providing an incriminating fact, disclosure of further details
related to the disclosed subject “presents no more than a ‘mere imaginary possibility’ of
increasing the danger of prosecution.” Rogers, 340 U.S. at 374–75 (footnote omitted) (quoting
Mason v. United States, 244 U.S. 362, 366 (1917)); see also United States v. LaRiche, 549 F.2d
1088, 1096 (6th Cir. 1977). “Thus, any witness who makes testimonial, incriminating statements
plainly has reason to know, when he does so, that these statements may be interpreted as a
waiver of his [F]ifth [A]mendment privilege against self-incrimination.” Klein, 667 F.2d at 288.
The further-incrimination rationale leads to the same place as the distortion-of-the-truth
rationale. “Only the witness knows whether the apparently innocent disclosure sought may
incriminate him, and the burden appropriately lies with him to make a timely assertion of the
privilege.” Garner, 424 U.S. at 655. So, too, with deponents who often will be counseled and
prepared, will take an oath or affirmation before testifying, and have their testimony recorded.
FED. R. CIV. P. 30(c)(1). Although use of a recorded deposition in lieu of live testimony at a trial
is not preferred, it is possible in both civil cases as the appellants acknowledge, see FED. R. CIV.
P. 32(a)(1), and, more importantly, in criminal cases, see FED. R. CRIM. P. 15(f). Witnesses who
are counseled can be presumed to know the risks that accompany these possibilities, especially
given that “the admissibility of [testimony in a prior civil proceeding] in criminal trials is well-
settled.” United States v. Cohen, 946 F.2d 430, 435 (6th Cir. 1991) (collecting cases); see also
United States v. Lay, 612 F.3d 440, 448 (6th Cir. 2010) (criminal defendant’s deposition
testimony from previous civil case admissible as an admission of a party-opponent under Federal
Rule of Evidence 801(d)(2)); United States v. Moffie, 239 F. App’x 150, 156–57 (6th Cir. 2007)
(same).
“Such a witness certainly is not treated unfairly, then, if a court ultimately interprets the
statements” made in a deposition as a waiver of the Fifth Amendment privilege as to those
subjects during the subsequent civil trial. Klein, 667 F.2d at 288. This is particularly true when,
as I detail further below, the appellants all had abundant indications from the State of Michigan
that criminal investigations into the Flint Water Crisis were ongoing into either their specific
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conduct, or the conduct of other officials allegedly involved in the Crisis. Indeed, Ambrose,
Croft, and Earley had already been criminally charged for such involvement. R. 715-3 (Criminal
Compl. at 1) (Page ID #45875). This is not a case in which the realization that a witness’s sworn
statements were potentially incriminating should strike them like a bolt from the blue. Instead,
these “witness[es] had reason to know that [their] prior statements would be interpreted as a
waiver of the [F]ifth [A]mendment’s privilege against self-incrimination.” Klein, 667 F.2d at
287.
At this point, both the lead opinion and the appellants interject to suggest that In re
Morganroth is contrary authority. The Morganroth court noted that “once a witness has testified
under oath initially, the risk of prosecution which the witness faced in the earlier proceeding is
not identical even though the questions may be the same in a subsequent proceeding or the same
subject matter covered.” 718 F.2d at 166. That is because “[p]erjury is a separate crime.” Id.For the lead opinion, the fact that the appellants could be subject to perjury charges based on
inconsistencies between their depositions and trial testimony suffices to transform the two stages
of litigation into separate proceedings.
This is unpersuasive. In re Morganroth dealt with two separate civil cases, which are
unquestionably different proceedings. Id. at 163–64. Neither the facts of that case nor its
reminder that perjury is a freestanding offense are of use in discerning what is a single
proceeding. After all, a defendant could not testify on direct examination during a trial about a
falsehood only to invoke the Fifth Amendment privilege to a related detail on cross examination
out of fear that the response would reveal that they had just perjured themselves. See United
States v. Charles, 138 F.3d 257, 267 (6th Cir. 1998) (noting that it is “well-settled” that the Fifth
Amendment “does not endow the person who testifies with a license to commit perjury” (quoting
United States v. Wong, 431 U.S. 174, 178 (1977))). That perjury is a separate offense does not
convert the direct examination and the cross examination of a witness into two separate
proceedings. For the same reason, the possibility of perjury alone does not provide guidance as
to whether a deposition and the trial for which it was prepared form the same proceeding. I thus
must look elsewhere to discern what constitutes different proceedings. I agree with the lead
opinion that Mitchell’s focus on purpose provides that test.
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A return to purpose, however, requires a different conclusion than the lead opinion
reaches. The appellants knew the purpose for which they gave testimony when each was
administered the oath at their depositions. They were counseled; Governor Snyder is himself a
lawyer. Sherrod, Teed, Vanderhagen & Ware, 2022 WL 834009, at *2. The complaint was
available. The possibility of civil liability for those who were parties was clear. It was so clear
that Earley, Ambrose, and Croft believed that they were being forced to trade off either asserting
their Fifth Amendment rights or vigorously defending themselves in this lawsuit. See E.D. Mich.
No. 5:16-cv-10444, R. 957 (ICDs’ Joint Mot. for Protective Order at 8–9) (Page ID #24540–41).
And it was apparent that the appellants’ deposition testimony would be used to develop the
questions that the parties would ask them at the civil trials that followed.
The appellants, moreover, were all well situated to determine what was or might be
incriminating in the answers that they contemplated giving. The district court even flagged the
possibility of invoking the Fifth Amendment for Earley, Ambrose, and Croft. In re Flint Water
Cases, No. 5:16-CV-10444, 2019 WL 5802706, at *3, *5 (E.D. Mich Nov. 7, 2019).
Nevertheless, the appellants chose a different course, testifying at their depositions without
invoking their privileges against self-incrimination. Undoubtedly, each had their reasons for
doing so. But these are reasons that come with consequences. I believe that one of those
consequences is that the appellants waived their Fifth Amendment privileges against self-
incrimination to some extent regarding the topics about which they were deposed.
C. Comparable Proceedings
Both the lead opinion and the appellants rely on several inapposite cases to reach the
opposite conclusion regarding waiver. Those cases largely involve proceedings that are discrete
and distinct. Some cases involve grand juries, United States v. Miranti, 253 F.2d 135, 139–41
(2d Cir. 1958); In re Neff, 206 F.2d 149, 151–52 (3d Cir. 1953), or a state-law analogue to a
grand jury, State v. Whiting, 402 N.W.2d 723, 730 (Wis. Ct. App. 1987). Another case involves
coroner inquests. Slutzker v. Johnson, 393 F.3d 373, 389 (3d Cir. 2004). Further cases involve
two different criminal cases, United States v. Johnson, 488 F.2d 1206, 1210–11 (1st Cir. 1973),
or two different civil cases, In re Morganroth, 718 F.2d at 163–64.
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Disparate as these cases seem, they are united by a common thread. Each involves
proceedings with purposes that distinguish them in ways that are not present when comparing a
deposition to the civil trial for which it was prepared. A grand jury, for instance, functions as a
stand-alone proceeding that is related to, but separate from, any criminal case that might follow
from it. This is because a “grand jury is not a judicial tribunal but rather an informing or
accusing body” that meets to determine whether charges may be brought, not whether the
accused is guilty of those charges. In re Neff, 206 F.2d at 152. Consequently, testimony at a
grand jury cannot lead directly to an adverse judgment the way that testimony at a deposition
can. Cf. FED. R. CIV. P. 56. There are intervening steps such as a trial or plea hearing that must
be taken. A coroner’s inquest meanwhile functions in a similar manner to a grand jury but
regarding the determination of a decedent’s cause of death. See Am. Nat’l Bank v. Cont’l Cas.
Co., 70 F.2d 97, 99 (6th Cir. 1934). These cases, which deal with threshold proceedings that
determine whether a case will be brought, shed little light on the present issue where the
purposes of a deposition and the subsequent civil trial are so closely aligned.2
The sole case among those cited by the lead opinion and the appellants that squarely
holds otherwise is State v. Roberts. There, the Supreme Court of New Hampshire held that a
witness’s waiver of their privilege against self-incrimination during a pretrial deposition does not
carry forward to the civil trial. Roberts, 622 A.2d at 1235. To reach this conclusion, the court
examined the New Hampshire state constitution, not the Fifth Amendment. See id. at 1235–36.
I am dubious that Roberts’s reasoning extends beyond the decision’s confines. How the
Supreme Court of New Hampshire characterized a deposition in Roberts strongly indicates that a
deposition is part of the same proceeding as the civil trial for which it was prepared. See id. at
1235 (“More similar to an examination of a witness at trial than either a grand jury appearance or
a pretrial exchange of affidavits, a deposition subjects a witness to timely, effective cross-
examination under oath and generates a potentially admissible transcript that is available to all
2
Neither United States v. Trejo-Zambrano, 582 F.2d 460 (9th Cir. 1978), nor People v. Williams, 181 P.3d
1035 (Cal. 2008), provide guidance in this case either. Trejo-Zambrano held that an incriminating affidavit filed in
support of a severance motion does not waive the privilege against self-incrimination at trial. 582 F.2d at 464.
Williams similarly held that testimony at a motion in limine hearing does not waive the privilege at trial. 181 P.3d at
1059. In both cases, the purpose of the testimony was different at the time of waiver and the time of trial. Thus,
those cases comport with my reasoning.
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parties.”). Instead of taking this position, however, the court in Roberts held that the privilege
against self-incrimination is specific to the stages in a proceeding, not the proceeding itself. Id.
at 1235.
Inquiring into the stages of a proceeding is different from the “well established” rule
reaffirmed in Mitchell that waiver is a proceeding-specific inquiry. 526 U.S. at 321. And
Mitchell’s focus was on the purpose of the appearance, not the stage of the proceeding. Id. at
322–25. Given that the Supreme Court in the intervening years decided Mitchell and stressed
there the purpose-based approach, I would decline to follow New Hampshire’s lead.
D. Changed Circumstances
The lead opinion also contends that a change in circumstances here—i.e., the fact that the
appellants were indicted after being deposed—warrants a different waiver analysis. I disagree.
Neither the cases nor the facts support that conclusion.
To start, the primary case on which appellants rely for this point, United States v.
Miranti, is inapposite. There, the government argued that because a defendant had testified
before the same grand jury for one crime, he had waived his Fifth Amendment privilege against
self-incrimination for when he testified to the body approximately a year later about another
crime. Miranti, 253 F.2d at 140. The Second Circuit rejected this argument. Presaging
Mitchell, the court stressed that, “for all practical purposes, two separate grand juries investigated
unrelated crimes,” cabining the waiver to the proceeding in which it occurred. Id.That is quite a different scenario than in this case. Unlike in Miranti where the purposes
of the two appearances before the grand jury were divergent, the purposes between the
deposition and the civil trial converge. By the time that the parties are engaged in discovery, the
complaint has already been filed and the possibility of liability has increased, even without the
matter ever going to trial. See FED. R. CIV. P. 56. Those considerations ought to focus the mind,
and the witness can assess how much they want to divulge at the deposition with awareness of
the types of questions, and risks that accompany them, that will come at trial.
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More importantly, the broader context of the appellants’ depositions belies the lead
opinion’s changed-circumstances argument. By the time that the appellants were deposed,
investigations into the Flint Water Crisis had been ongoing for over three years, and fifteen
people had been charged. In 2016, Ambrose, Croft, and Earley were criminally charged on
counts of false pretenses and conspiracy to commit false pretenses for their alleged roles in the
Crisis. R. 715-3 (Criminal Compl. at 1) (Page ID #45875). Notably, Ambrose and Earley were
also charged with misconduct in office in violation of Michigan Compiled Laws § 750.5053 and
willful neglect of duty in office in violation of Michigan Compiled Laws § 750.478.4 Id. at 1–2
(Page ID #45875–76). Although the conduct that formed the basis for the indictments against
Governor Snyder and Baird was distinct from that which formed the basis for the indictments
3
Those charges provide as follows. For Earley, the misconduct in office count read:
COUNT 3—COMMON LAW OFFENSES—MISCONDUCT IN OFFICE—DEFENDANT (01)
did commit misconduct in office, an indictable offense at common law, during his tenure as the
state-appointed emergency manager for the City of Flint, by intentionally misleading the citizens
of Flint by falsely stating the Flint Water Treatment Plant was equipped to produce safe water,
allowing the Flint Water Treatment plant to produce water to the public despite knowledge that the
plant was not ready for use, allowing the City of Flint to enter into a contract that required interim
use of the Flint Water treatment plant for 30 months with knowledge that the plant was not ready
to produce safe water, authorizing dissemination of information to the general public that was
false and misleading in regards to the safety and potability of the Flint River water; contrary to
MCL 750.505. [750.505]
FELONY: 5 Years and/or $10,000.00
R. 715-3 (Criminal Compl. at 1) (Page ID #45875). For Ambrose, the misconduct in office count read:
COUNT 4—COMMON LAW OFFENSES—MISCONDUCT IN OFFICE—DEFENDANT (02)
did commit misconduct in office, an indictable offense at common law, during his tenure as the
state-appointed emergency manager for the City of Flint, by obstructing and hindering a healthcare
investigation conducted by the Genesee County Health Department with regard to the
Legionnaires’ Disease outbreak; contrary to MCL 750.505. [750.505]
FELONY: 5 Years and/or $10,000.00
Id. at 2 (Page ID #45876).
4
Those charges provided for both as follows:
COUNT 5—WILLFUL NEGLECT OF DUTY IN OFFICE—DEFENDANTS (01) (02)
did willfully neglect to assure the local government’s capacity to provide or cause to be provided
necessary governmental services essential to the public health, safety, and welfare pursuant to the
powers granted to them by Public Act 436 of 2012, the Local Financial Stability and Choice Act,
MCL 141.1549(2); contrary to MCL 750.478. [750.478]
MISDEMEANOR: 1 Year and/or $1,000.00
Id.
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against Ambrose and Earley, Governor Snyder would also be indicted for two misdemeanor
counts of willful neglect of duty in violation of Michigan Compiled Laws § 750.478,5 and Baird
would be indicted for one count of misconduct in office in violation of Michigan Compiled Laws
§ 750.505,6 in January 2021 for their roles in the Flint Water Crisis.
Those later indictments came after a public shift in the investigations. In June 2019,
Michigan’s Department of Attorney General announced that it was taking a fresh look at the
investigations and would “aggressively pursue[]” leads against “additional individuals of
interest.” R. 715-5 (Press Release) (Page ID #45907). It stated that the reason for this change in
approach was that “all available evidence was not [previously] pursued” because private law
firms—including those representing “the Executive Office of former Governor Rick Snyder”—
had played “a role in deciding what information would be turned over to law enforcement.” Id.
(Page ID #45906). Prosecutors believed that this led to the investigation resting on a “flawed
foundation.” Id. (Page ID #45907).
5
Those charges against Governor Snyder read:
COUNT 1: WILLFUL NEGLECT OF DUTY
As Governor of the State of Michigan, a public officer, did willfully neglect his mandatory legal
duty under Article V, section 8 and 10, of the Michigan Constitution, by failing to inquire into the
performance, condition and administration of the public offices and officers that he appointed and
was required to supervise; contrary to MCL 750.478.
MISDEMEANOR: 1 year and/or $1,000.00
COUNT 2: WILLFUL NEGLECT OF DUTY
As Governor of the State of Michigan, a public officer, did willfully neglect his mandatory legal
duty to protect citizens of this state against disaster and/or emergency under Public Act 390 of
1976 (Emergency Management Act) by failing to declare a state of emergency and/or disaster
when the Governor had notice of a threat of a disaster and/or emergency in the City of Flint;
contrary to MCL 750.478.
MISDEMEANOR: 1 year and/or $1,000.00
R. 712-1 (Snyder Indictment at 2–3) (Page ID #45807–08).
6
That charge against Baird reads:
COUNT 2: MISCONDUCT IN OFFICE
Did commit misconduct in office, an indictable offense at common law, during his tenure as a
public officer and appointed member of the Executive Office of Governor Snyder, by improperly
using state personnel and resources; contrary to MCL 750.505C. [750.505-C]
FELONY: 5 years and/or $10,000.00
R. 719-1 (Baird Indictment at 2–3) (Page #45955–56). It is unclear why the indictment reads “MCL 750.505C” as
the offense charged is Michigan Compiled Laws § 750.505. There is no “MCL 750.505C” of which I am aware in
the Michigan Compiled Laws.
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 73
That foundation, however, could be rebuilt. As part of the investigative shakeup, the
charges against Ambrose, Croft, and Earley were dropped without prejudice. In reference to
those charges, the announcement said: “It is important to note that this voluntary dismissal by
our team is not a determination of any defendant’s criminal responsibility. We are not precluded
from refiling charges against the defendants listed below or adding new charges and additional
defendants.” Id. Given this public announcement, the appellants should have known that their
actions related to the Flint Water Crisis might subject them to criminal liability. This includes
both Governor Snyder and Baird. After all, the announcement also stated explicitly that an
impetus for the change in approach was a concern that the Executive Office of Governor
Snyder—an office to which each man was linked—may have previously shielded information
from the investigation.
At this juncture it bears repeating that three of the appellants—Ambrose, Croft, and
Earley—went so far as to seek a protective order to shield them from being deposed, identifying
the risk of incriminating themselves should they do so. In re Flint Water Cases, 2019 WL
5802706, at *1. The district court denied their motions, issuing an order available to all the
appellants. That order suggested that Ambrose, Croft, and Earley could invoke their privileges
against self-incrimination at the deposition to each question that they believed would require an
incriminating response. Id. at *3, *5. Of course, none did.
The appellants therefore had ample notice that they spoke at their own peril when they
testified at their depositions. The State of Michigan was providing multiple indications that
public officials involved in the Flint Water Crisis would be prosecuted. Some of the appellants
already had been charged, and those who had not would eventually be similarly charged. And
the investigation was rebooted because of previous investigators’ ties to Governor Snyder, to
whom Baird was an advisor. Circumstances might arise in which an intervening criminal
indictment will affect the waiver analysis. Those circumstances are not present in this case.
E. Presumption against Waiver
The lead opinion’s conclusion that a deposition is a separate proceeding from the trial for
which it was prepared is grounded in a presumption against waiving the Fifth Amendment. For
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 74
this proposition, the lead opinion points to the Supreme Court’s guidance in Hoffman v. United
States that the Fifth Amendment “must be accorded liberal construction in favor of the right it
was intended to secure.” 341 U.S. at 486. Hoffman, however, does less work for the lead
opinion’s position than is billed for two reasons.
First, Hoffman is not a waiver case. Instead, it involved what a witness needed to show to
demonstrate that their testimony tends to incriminate and thus renders the Fifth Amendment’s
privilege against self-incrimination available to invoke. The petitioner, Samuel Hoffman, had
invoked his Fifth Amendment right not to answer several questions put to him in a special
federal grand jury. Id. at 481–82. After the district court found that Hoffman faced “no real and
substantial danger of incrimination,” the district court held him in contempt when he continued
to refuse to testify. Id. at 482. The Supreme Court reversed, reasoning that, given what Hoffman
had shown, “it was not ‘perfectly clear, from a careful consideration of all the circumstances in
the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’
to incriminate.” Id. at 488 (alteration in original) (citation omitted).
At its core, Hoffman teaches that courts must liberally construe a witness’s claim that
their testimony will tend to incriminate them in favor of the right’s assertion. That is a non
sequitur for this case. There is no dispute that the appellants could have invoked their privilege
against self-incrimination at the depositions. The issue is that they did not, leaving us to sort out
how far that waiver reaches. Hoffman does not speak to this problem.
Nor could it. The line from Hoffman that the lead opinion highlights is telling: the Fifth
Amendment should be liberally construed so that “the right it was intended to secure” is
protected. Id. at 486 (emphasis added). That right is the right of a witness not to be compelled
to give inculpatory testimony against themselves. Applying this liberal-construction canon in the
waiver context is an awkward fit. A waiver can only occur once a key evil that the Fifth
Amendment seeks to ward off has been dispelled: compulsion. If a witness voluntarily chooses
to testify rather than invoke their right not to provide self-incriminating testimony, then the
element of compulsion has been removed for the purposes of the privilege. See Garner, 424
U.S. at 654 (“[I]n the ordinary case, if a witness under compulsion to testify makes disclosures
instead of claiming the privilege, the government has not ‘compelled’ him to incriminate
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 75
himself.”). When the witness waives the privilege, then, the right that the Fifth Amendment was
intended to secure has already been secured. The witness has just decided not to exercise that
right, and the waiver rule enforces that decision.
On its own terms, thus, Hoffman’s liberal-construction canon does not settle the waiver
issue in this case. Again, Mitchell’s purpose test provides the solution to the puzzle. This test
shows that a deposition is part of the same proceeding as the trial for which it was prepared.
F. Conclusion
Finally, I suggest how this imbroglio could have been avoided: by the appellants
invoking their Fifth Amendment privileges against self-incrimination at their depositions. In
countless civil depositions conducted around the country, such invocations have long been
routine, and their nuances have long been routinely addressed by lower courts. See, e.g., Pursley
v. City of Rockford, No. 18 CV 50040, 2020 WL 4931394, at *3 (N.D. Ill. Aug. 20, 2020);
Slainte Invs. Ltd. P’ship v. Jeffrey, No. 3:14-CV-1750 CSH, 2015 WL 1445331, at *6 (D. Conn.
Mar. 30, 2015); S.E.C. v. ARVCO Cap. Rsch., LLC, No. 3:12-CV-00221-MMD-WGC, 2014 WL
5106100, at *3 (D. Nev. Oct. 10, 2014); C.K. v. Bell Cnty. Bd. of Educ., No. 6:11-CV-296-ART-
HAI, 2012 WL 13180795, at *1 (E.D. Ky. Oct. 9, 2012); Tyson v. Equity Title & Escrow Co. of
Memphis, LLC., 282 F. Supp. 2d 820, 822 (W.D. Tenn. 2003); Nunn v. Mich. Dep’t of Corr., No.
96-CV-71416-DT, 1998 WL 34113236, at *2 (E.D. Mich. Apr. 8, 1998); Nutramax Lab’ys, Inc.
v. Twin Lab’ys, Inc., 32 F. Supp. 2d 331, 333 (D. Md. 1999); Moll v. U.S. Life Title Ins. Co. of
New York, 113 F.R.D. 625, 628–29 (S.D.N.Y. 1987); McIntyre’s Mini Comput. Sales Grp., Inc.
v. Creative Synergy Corp., 115 F.R.D. 528, 530 (D. Mass. 1987). A witness waiving their Fifth
Amendment privilege against self-incrimination is not a foreordained outcome of being deposed.
Rather, the calculations that go into whether a witness should invoke their Fifth
Amendment privilege during civil depositions are themselves complex. If the witness testifies at
the civil deposition only later to invoke that privilege in a subsequent criminal trial against them,
then the witness runs the risk of being found unavailable and the transcript coming in under
Federal Rules of Evidence 804(b)(1) or 804(b)(3), see United States v. MacCloskey, 682 F.2d
468, 477 (4th Cir. 1982) (“The law is clear that a witness is unavailable under Rule 804(a)(1)
Nos. 22-1353/1355/1357/1358/1360 Walters, et al. v. Richard Snyder, et al. Page 76
when he invokes the Fifth Amendment privilege and the claim is sustained by the trial court.”);
United States v. Toney, 599 F.2d 787, 789–90 (6th Cir. 1979) (same), or more simply under
Federal Rule of Evidence 801(d)(2), see Lay, 612 F.3d at 448. If instead the witness is a party
and invokes their Fifth Amendment privilege during the civil deposition, then they risk an
adverse inference being drawn against them in the civil trial that follows. See McKinney v.
Galvin, 701 F.2d 584, 589 n.10 (6th Cir. 1983) (“[T]he Fifth Amendment does not forbid adverse
inferences against parties to civil actions when they refused to testify in response to probative
evidence offered against them.” (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976))
(alteration in original)); see also Leapers, Inc. v. SMTS, LLC, 879 F.3d 731, 739 (6th Cir. 2018).
These kinds of decisions are for the witness to make, presumably with advice from
counsel. Once the decisions are made, it is not my prerogative at this stage to reweigh the risks
and rewards that attend them. Rather, “[t]hese choices have consequences.” Microfinancial,
Inc., 385 F.3d at 78. This court must discern what the law demands those consequences to be.
In the present case, I believe the effects are that the appellants waived their Fifth Amendment
privileges in their depositions on the subjects to which they testified, and these waivers apply
also for the civil trial for which the appellants were deposed.
At bottom, our choices have consequences. The appellants decided to waive their
privileges against self-incrimination at their depositions despite knowing that their testimony
could be self-incriminating and that criminal investigations into the Crisis were ongoing. They
understood the purpose for which they gave their deposition testimony. And yet still they chose
not to invoke the privilege against self-incrimination. For the foregoing reasons, I would hold
the appellants to their choices. Because the district court did not err in determining that the
appellants waived their Fifth Amendment privileges, I would affirm. I respectfully dissent.