Herndon v. Herndon , 243 N.C. App. 288 ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-28
Filed: 6 October 2015
Durham County, No. 14 CVD 3144
STEVEN CRAIG HERNDON, Plaintiff,
v.
ALISON KINGREY HERNDON, Defendant.
Appeal by defendant from order entered 10 September 2014 by Judge Doretta
L. Walker in Durham County District Court. Heard in the Court of Appeals 19 May
2015.
Foil Law Offices, by N. Joanne Foil and Laura E. Windley, for plaintiff-
appellee.
Tharrington Smith, LLP, by Jill Schnabel Jackson and Evan B. Horwitz, for
defendant-appellant.
DIETZ, Judge.
This is an appeal from a domestic violence protective order entered against
Alison Herndon upon motion of her husband Steven Herndon. Mr. Herndon alleged
that his wife was putting sleep-inducing drugs in his food and then sneaking out at
night to conduct an affair, often leaving their children home unsupervised.
When Ms. Herndon’s counsel called her to testify at the hearing, the trial court
stated, “You’re calling her. She ain’t going to get up there and plead no Fifth
Amendment?” Ms. Herndon’s counsel responded that she did not expect Ms. Herndon
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Opinion of the Court
to invoke her Fifth Amendment right to remain silent. The trial court then stated, “I
want to make sure that wasn’t going to happen because you -- somebody might be
going to jail then. I just want to let you know. I'm not doing no Fifth Amendment.”
Ms. Herndon testified on direct examination without invoking her Fifth
Amendment rights. The trial court then stated that there would not be any cross-
examination. Instead, the trial court asked Ms. Herndon questions, many of which
were beyond the scope of Ms. Herndon’s direct examination. In response to those
questions, Ms. Herndon stated variations of “I don’t recall” or “I don’t remember.”
After ending the questioning, the trial court explained that it found Ms.
Herndon’s testimony “not credible that you don’t remember.” The court then entered
a domestic violence protective order against Ms. Herndon.
We are constrained to reverse and remand this case. Under long-standing U.S.
Supreme Court precedent, a witness does not automatically waive her Fifth
Amendment rights by voluntarily taking the stand to testify in a civil case. Instead,
the trial court must listen to the witness’s testimony and determine whether the
questions for which the witness invokes the right to remain silent concern “matters
raised by her own testimony on direct examination.” Brown v. United States, 356
U.S. 148, 156 (1958). If so, then the witness has waived her Fifth Amendment rights
as to those questions.
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Here, the trial court’s statement that “I’m not doing no Fifth Amendment” and
that if Ms. Herndon attempted to invoke her Fifth Amendment rights “somebody
might be going to jail” violated Ms. Herndon’s Fifth Amendment rights. The threat
to imprison Ms. Herndon if she invoked her right to remain silent may have forced
Ms. Herndon to answer questions differently than she otherwise would have if she
felt free to assert that constitutional right. Accordingly, we must vacate and remand
this case for a new hearing that disregards Ms. Herndon’s previous testimony,
obtained in violation of her Fifth Amendment rights.
Finally, as explained below, our need to vacate and remand this case on Fifth
Amendment grounds precludes us from reaching the remaining issues raised in this
appeal under the doctrine of constitutional avoidance.
Facts and Procedural Background
On 21 May 2014, Plaintiff Steven Herndon filed a complaint and motion for a
domestic violence protective order against his wife, Defendant Alison Herndon. In
his complaint, Plaintiff claimed that Defendant caused or attempted to cause bodily
injury to him and the parties’ four minor children, and that Mr. Herndon lived in fear
of imminent serious bodily injury. Specifically, Mr. Herndon alleged that Ms.
Herndon had drugged his food and drink on at least three occasions, causing him to
pass out and become ill. Mr. Herndon also alleged that, after rendering him
incapacitated, his wife left the couple’s four minor children in the home unsupervised
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Opinion of the Court
while she visited her lover. Based on these allegations, the trial court entered an ex
parte domestic violence protective order that same day and scheduled a full hearing.
On 10 September 2014, the trial court held a full hearing. Following Mr.
Herndon’s evidence, Ms. Herndon’s counsel called her to the stand and the following
exchange occurred:
COUNSEL: Call Alison Herndon.
THE COURT: All right. Before we do that, let me make a
statement. You’re calling her. She ain’t going to get up
there and plead no Fifth Amendment?
COUNSEL: No, she’s not.
THE COURT: I want to make sure that wasn’t going to
happen because you -- somebody might be going to jail
then. I just want to let you know. I'm not doing no Fifth
Amendment.
After defense counsel’s direct examination, the trial court denied Mr.
Herndon’s counsel the right to cross-examination, explaining that “I was going to let
you all ask two questions, but we’re about [out] of time for them now.” The court then
asked Ms. Herndon a series of questions, some of which concerned whether Ms.
Herndon had admitted in text messages that she was drugging her husband. Ms.
Herndon answered many of those questions with variations of “I don’t recall” or “I
don’t remember.”
After these questions concluded, the trial court announced its ruling. The court
stated that it did not believe Ms. Herndon’s testimony: “I find your limited testimony
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Opinion of the Court
you did talk about to be not credible that you don’t remember.” The court then made
a series of additional findings and conclusions and later entered a written domestic
violence protective order. Ms. Herndon timely appealed.
Analysis
Among the many arguments presented in this appeal, Ms. Herndon contends
that her Fifth Amendment rights were violated when the trial court stated “You’re
calling her. She ain’t going to get up there and plead no Fifth Amendment” and that
“I want to make sure that wasn’t going to happen because you -- somebody might be
going to jail then. I just want to let you know. I'm not doing no Fifth Amendment.”
We agree that these statements violated Ms. Herndon’s Fifth Amendment rights and
require us to vacate and remand this matter for a new hearing that disregards Ms.
Herndon’s previous testimony.
The Fifth Amendment protects an individual from being compelled to testify
in a way that could incriminate her or subject her to fines, penalties, or forfeiture.
See State v. Pickens, 346 N.C. 628, 637, 488 S.E.2d 162, 166 (1997). To determine
whether the Fifth Amendment privilege applies, the trial court must evaluate
whether, given the implications of the question and the setting in which it was asked,
a real danger of self-incrimination by the witness exists. Id. at 637, 488 S.E.2d at
167. The court can reject a claim of Fifth Amendment privilege only if there is no
possibility of such danger. Id. at 637, 488 S.E.2d at 167.
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Importantly, the “privilege against self-incrimination is intended to be a shield
and not a sword.” McKillop v. Onslow County, 139 N.C. App. 53, 63, 532 S.E.2d 594,
601 (2000). As a result, although a witness does not “forego the right to invoke on
cross-examination the privilege against self-incrimination” merely by choosing to
testify willingly in a civil proceeding, that choice is a waiver of the right with regard
to “matters raised by [the witness’s] own testimony on direct examination.” Brown v.
United States, 356 U.S. 148, 154-56 (1958). Indeed, it is hornbook law that “[a] party
to or other witness in a civil proceeding does not waive his privilege merely by taking
the stand.” Testifying in civil proceedings as waiver of privilege against self-
incrimination, 72 A.L.R.2d 830 (2014) (collecting cases). When a witness chooses to
testify, “the privilege is not lost as to matters wholly unrelated to and not connected
with the subject of the direct examination.” Id.In Brown, the Supreme Court held that the decision whether to permit
invocation of the Fifth Amendment in a civil proceeding is one that can be made only
after the trial court considers what the witness “said on the stand.” Id. at 157. In
other words, the determination that a witness may not invoke the Fifth Amendment
cannot be made simply because the witness “physically took the stand.” Id.
That is precisely what happened here. The trial court first sought to confirm
with Ms. Herndon’s counsel that, if Ms. Herndon testified, “[s]he ain’t going to get up
there and plead no Fifth Amendment.” The court then threatened to imprison Ms.
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Opinion of the Court
Herndon (or her counsel) if Ms. Herndon invoked her Fifth Amendment rights during
her testimony: “I want to make sure that wasn’t going to happen because you --
somebody might be going to jail then. I just want to let you know. I'm not doing no
Fifth Amendment.”
Under Brown, the trial court’s statements violated Ms. Herndon’s Fifth
Amendment rights. Ms. Herndon was left with the choice of forgoing her right to
testify at a hearing where her liberty was threatened or forgoing her constitutional
right against self-incrimination. It was error for the trial court to place her in that
impossible situation. Moreover, the error was prejudicial and “amounts to the denial
of a substantial right.” N.C. R. Civ. P. 61. Although Ms. Herndon’s direct testimony
did not address her alleged drugging of her husband, the trial court asked her about
text messages that corroborated this allegation. Ms. Herndon responded to these
questions with variations of “I don’t recall” and “I don’t remember.” The trial court
then relied on those answers to determine that Ms. Herndon’s testimony was not
credible. The trial court’s threat to imprison Ms. Herndon if she invoked her Fifth
Amendment rights may have forced Ms. Herndon to answer these questions
differently than she otherwise would have if she felt free to assert that constitutional
right.
The dissent asserts that Ms. Herndon waived her Fifth Amendment rights
when her counsel indicated that Ms. Herndon did not plan to invoke those rights. But
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Opinion of the Court
Ms. Herndon’s counsel could not have anticipated that the trial court, on its own
initiative, would ask Ms. Herndon questions well beyond the scope of the direct
testimony. Thus, counsel’s statement that Ms. Herndon would not invoke her Fifth
Amendment rights is more reasonably viewed as addressing the scope of her
testimony on direct.1 And, in any event, a trial court cannot demand that a witness
waive her Fifth Amendment rights in order to testify in her own defense—
particularly in a proceeding like this one, where Ms. Herndon’s fundamental right to
be with her children is at stake. See Jenkins v. Wessel, 780 So. 2d 1006, 1008 (Fla.
Dist. Ct. App. 2001) (discussing the scope of Fifth Amendment waiver for testimony
during a domestic violence protective order hearing).
The dissent also cites McKillop v. Onslow County, 139 N.C. App. 53, 63, 532
S.E.2d 594, 601 (2000), a case in which this Court found a complete waiver of a party’s
Fifth Amendment rights. But McKillop involved a plaintiff who initiated the legal
proceedings by challenging the constitutionality of an ordinance regulating adult
businesses. This Court held that “if a plaintiff seeks affirmative relief or a defendant
pleads an affirmative defense[,] he should not have it within his power to silence his
own adverse testimony when such testimony is relevant to the cause of action or the
defense.” Id. (emphasis added). Here, by contrast, Ms. Herndon is defending an
action brought against her, seeking a protective order that would prevent her from
1 Notably, in his Appellee Brief, Mr. Herndon does not contend that this statement constituted
a waiver.
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contacting her own children. As the Florida District Court of Appeal acknowledged
in Jenkins, a defendant in this circumstance is entitled to invoke the Fifth
Amendment in response to questions beyond the scope of her direct testimony. See
780 So. 2d at 1008.
Finally, the dissent notes that Ms. Herndon “presents no substantive authority
in support of her argument.” To be sure, there are few citations to legal authority in
this section of Ms. Herndon’s brief, but Ms. Herndon quoted the portion of the hearing
transcript containing the trial court’s challenged statements, asserted a violation of
the Fifth Amendment, and cited both the Fifth Amendment to the U.S. Constitution
and a U.S. Supreme Court case discussing the scope of Fifth Amendment rights. We
believe that is sufficient to satisfy Rule 28(b)(6) of the Rules of Appellate Procedure.
Indeed, Mr. Herndon had no difficulty understanding and responding to this
argument; his Appellee Brief cites and discusses both Brown and McKillop.
In sum, we hold that the trial court violated Ms. Herndon’s Fifth Amendment
rights. We therefore vacate and remand this case for a new hearing. At that hearing,
the trial court should disregard Ms. Herndon’s testimony from the previous hearing.
If Ms. Herndon chooses to testify at the new hearing, the trial court should assess
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any invocation of the Fifth Amendment under the test established by the Supreme
Court in Brown.2
This appeal also raises several other evidentiary issues, one of which involves
an issue of first impression with a constitutional dimension concerning the right to
privacy in the marital relationship. We cannot address those issues. As explained
above, we must vacate and remand this case for a new hearing. At that hearing, the
trial court may not rule the same way on these evidentiary issues, or the parties may
choose to present different evidence and these issues might never arise. Thus, our
discussion of those issues in this opinion would be non-binding dicta, see Trustees of
Rowan Tech. College v. J. Hyatt Hammond Associates, Inc., 313 N.C. 230, 242, 328
S.E.2d 274, 281 (1985), or, worse yet, might be an impermissible advisory opinion,
Kirkman v. Wilson, 328 N.C. 309, 312, 401 S.E.2d 359, 361 (1991). Moreover, with
respect to the issue concerning the right to privacy, addressing it would violate the
long-standing principle that “the courts of this State will avoid constitutional
questions, even if properly presented, where a case may be resolved on other
grounds.” Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002).
2 We note that Ms. Herndon’s invocation of her Fifth Amendment rights in response to certain
questions by the court, or counsel on cross-examination, will not impede the court’s ability to find the
truth in a civil hearing. “The finder of fact in a civil cause may use a witness’ invocation of his Fifth
Amendment privilege against self-incrimination to infer that his truthful testimony would have been
unfavorable to him.” McKillop, 139 N.C. App. at 63-64, 532 S.E.2d at 601. Thus, if Ms. Herndon
refuses to answer certain questions based on her Fifth Amendment rights, the trial court may draw
an adverse inference supporting Mr. Herndon’s request for the protective order.
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Accordingly, for the reasons discussed above, we vacate and remand this case based
on the violation of Ms. Herndon’s Fifth Amendment rights, and decline to reach the
remaining issues raised on appeal.
Conclusion
For the reasons stated above, we vacate and remand the trial court’s entry of
the domestic violence protective order and remand this matter for further
proceedings.
VACATED AND REMANDED.
Judge STEPHENS concurs.
Judge BRYANT dissents by separate opinion.
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No. COA15-28 – Herndon v. Herndon
BRYANT, Judge, dissenting.
The majority reverses and remands on grounds that the trial court violated
defendant’s Fifth Amendment rights. However, under the circumstances present in
this case, where defendant waived her Fifth Amendment privilege, then took the
stand and testified in her own defense, the trial court’s assertion that defendant
would not be allowed to claim the privilege has no practical and certainly no
prejudicial effect. Because there was no violation of defendant’s Fifth Amendment
rights, I respectfully dissent.
“No person . . . shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. This phrase, commonly known as the privilege
against self-incrimination, is meant to assure individuals that they will not be
compelled to give testimony which will tend to incriminate them or which will tend
to subject them to fines, penalties, or forfeiture. McKillop v. Onslow Cnty., 139 N.C.
App. 53, 62–63, 532 S.E.2d 594, 600 (2000). “However, ‘it is well established that the
privilege protects against real dangers, not remote and speculative possibilities,’ and
a witness may not arbitrarily refuse to testify without existence in fact of a real
danger, it being for the court to determine whether that real danger exists.” Trust
Co. v. Grainger, 42 N.C. App. 337, 339, 256 S.E.2d 500, 502 (1979) (emphasis added)
(quoting Zicarelli v. Investigation Comm’n, 406 U.S. 472, 478, 32 L. Ed. 2d 234, 240
(1972)).
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BRYANT, J., dissenting
At the outset, it should be noted that defendant has failed to argue any case
law in support of her argument, citing only to Malloy v. Hogan, 378 U.S. 1, 12 L. Ed.
2d 653 (1964), for the proposition that the Fifth Amendment right against compulsory
self-incrimination is applicable to the states through the Fourteenth Amendment. As
defendant presents no substantive authority in support of her argument, our Rules
of Appellate Procedure normally require that defendant’s argument be dismissed.
See N.C. R. App. P. 28(b)(6) (2015) (“Issues not presented in a party’s brief, or in
support of which no reason or argument is stated, will be taken as abandoned.”).
However, the majority chooses to address the Fifth Amendment issue as its sole
reason for reversing the trial court; I therefore address the issue in dissent.
Here, a review of the record fails to demonstrate a violation of defendant’s
constitutional right against self-incrimination. The transcript of the hearing
indicates that defendant and her paramour were both hostile witnesses. Defendant’s
paramour was called as a witness by plaintiff. On direct examation, defendant’s
paramour consistently refused to answer questions posed by plaintiff. Instead, he
repeatedly asserted his Fifth Amendment right against compulsory self-
incrimination in lieu of answering the questions posed. 3 With the exception of
questions regarding communications between defendant and her paramour regarding
3 According to the record, plaintiff attempted to depose defendant’s paramour prior to trial,
but defendant’s paramour refused to testify under oath or remain for the deposition. Later, Judge
David Q. LeBarre found defendant’s paramour to be willfully not in compliance with a subpoena of the
Durham County District Court.
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BRYANT, J., dissenting
defendant’s children (which the court found did not expose defendant’s paramour to
criminal culpability), there is nothing in the record to indicate that the paramour was
compelled to answer questions once he asserted his Fifth Amendment right.
THE COURT: I understand why you are not answering the
other questions and nobody is asking you to . . . .
In fact, following its order compelling testimony regarding communications about
defendant’s children, the trial court informed the witness that the scope of her order
compelling his testimony was limited to the testimony about those communications.
After plaintiff rested his case, defendant put on her direct case. Defendant
called a neighbor of plaintiff and defendant as a witness, whose testimony on direct
and cross-examination was in response to many questions regarding plaintiff and
defendant, their children, and many aspects of the parties’ lives. Defense counsel
then called defendant as a witness. As defendant was about to take the stand on her
own behalf, the following occurred:
THE COURT: Thank you. Come on down. Call your next
witness.
[Defense counsel]: Call Alison Herndon.
THE COURT: All right. Before we do that, let me make a
statement. You're calling her. She ain't going to get up
there and plead no Fifth Amendment?
[Defense counsel]: No, she's not.
THE COURT: I want to make sure that wasn't going to
happen because you -- somebody might be going to jail
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BRYANT, J., dissenting
then. I just want to let you know. I'm not doing no Fifth
Amendment.
[Defense counsel]: No.
THE COURT: Okay. Call your witness.
[Defense counsel]: Alison Herndon.
(emphasis added). The majority holds that this statement by the trial court
constituted a violation of defendant’s constitutional right against self-incrimination,
because “[this] threat to [defendant] . . . may have forced [her] to answer questions
differently than she otherwise would have if she felt free to assert that constitutional
right.” (emphasis added). I strongly disagree with the majority’s holding and its
reasoning.
To the trial court’s question, “You’re calling her. She ain’t going to get up there
and plead no Fifth Amendment?” defendant’s counsel responded, “No she’s not.”
Defendant’s counsel made no further response or objection to the trial court’s
statement. Defendant testified at length regarding matters before the court, and
never asserted or attempted to assert a Fifth Amendment privilege, nor did defendant
make a proffer that her testimony was in anyway compromised, that she felt
threatened or forced to answer questions differently based on the trial court’s
comments. As such, the factual basis upon which the majority bases its opinion, is
unsupported. There is nothing in the record or transcript to permit the majority’s
finding that defendant’s Fifth Amendment right against self-incrimination was
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violated. In fact, counsel’s response that defendant would not plead the Fifth, could,
I submit, be considered a waiver of the privilege. Further, it is clear that defendant
could have refused to testify upon hearing the trial court’s additional statement that
“somebody might be going to jail”; instead, defendant proceeded to testify.
[W]hen a witness voluntarily testifies, the privilege
against self-incrimination is amply respected without need
of accepting testimony freed from the antiseptic test of the
adversary process. The witness himself, certainly if he is a
party, determines the area of disclosure and therefore of
inquiry. Such a witness has the choice, after weighing the
advantage of the privilege against self-incrimination
against the advantage of putting forward his version of the
facts and his reliability as a witness, not to testify at all. He
cannot reasonably claim that the Fifth Amendment gives
him not only this choice but, if he elects to testify, an
immunity from cross-examination on the matters he has
himself put in dispute. It would make of the Fifth
Amendment not only a humane safeguard against
judicially coerced self-disclosure but a positive invitation to
mutilate the truth a party offers to tell.
Brown v. United States, 356 U.S. 148, 155–56, 2 L. Ed. 2d 589, 597 (1958) (emphasis
added). While the majority cites Brown in support of its holding that a Fifth
Amendment violation occurred, I do not read Brown as supporting the overly
technical application made by the majority. The majority states that Brown holds
“the decision whether to permit invocation of the Fifth Amendment in a civil
proceeding is one that can be made only after the trial court considers what the
witness ‘said on the stand.’ ” And a “determination that a witness may not invoke
the Fifth Amendment cannot be made simply because the witness ‘physically took the
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stand.’ ” Viewing the facts as interpreted by the majority, even if the trial court’s
actions did not follow the procedure the majority seems to think is required before a
ruling on privilege, I am unaware of any cases that would consider these facts to
constitute a Fifth Amendment violation and support a reversal of this case.
I disagree with the majority’s assertion that Brown is an indication of “long-
standing U.S. Supreme Court precedent” that “a witness does not waive her Fifth
Amendment rights by voluntarily taking the stand to testify in a civil case.” Brown
resulted from a civil contempt proceeding during which the defendant was held in
contempt for failure to answer certain questions on cross-examination. The United
States Supreme Court held that where the defendant took the stand voluntarily and
testified on her own behalf, she could not invoke the privilege against self-
incrimination as to relevant matters, and affirmed the lower court’s contempt ruling.
See McKillop, 139 N.C. App. at 64–65, 532 S.E.2d at 601 (“[U]nder [Cantwell v.
Cantwell, 109 N.C. App. 395, 427 S.E.2d 129 (1993)], we hold that [the] plaintiff must
choose between her right not to incriminate herself in a pending criminal trial and
her claim that she cannot be held in civil contempt.”).
In McKillop, this Court addressed Brown and discussed how, even when a
party invokes the Fifth Amendment, the trial court has a duty to weigh the rights of
the litigants and ensure that there is due process and a fair trial:
While we recognize that the defendant in the
present case had the right to invoke her privilege
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BRYANT, J., dissenting
against self-incrimination, "the interests of the other
party and regard for the function of courts of justice
to ascertain the truth become relevant, and prevail
in the balance of considerations determining the
scope and limits of the privilege . . . ." Brown v.
United States, 356 U.S. 148, 156, 2 L. Ed. 2d 589,
597, reh'g denied, 356 U.S. 948, 2 L. Ed. 2d 822(1958) (a party witness in a criminal case cannot
present testimony on direct examination and then
invoke the privilege on cross-examination); see also
Pulawski v. Pulawski, 463 A.2d 151, 157 (R.I. 1983)
(as between private litigants, the privilege against
self-incrimination must be weighed against the right
of the other party to due process and a fair trial). The
privilege against self-incrimination is intended to be
a shield and not a sword. Pulawski, 463 A.2d at 157;
Christenson v. Christenson, 162 N.W.2d 194, 200
(Minn. 1968). Therefore, "if a plaintiff seeks
affirmative relief or a defendant pleads an
affirmative defense[,] he should not have it within
his power to silence his own adverse testimony when
such testimony is relevant to the cause of action or
the defense." Christenson, 162 N.W.2d at 200
(citation omitted).
[Cantwell, 109 N.C. App. at 397, 427 S.E.2d at 130–31].
Finding Christenson persuasive and instructive, this Court
held "a party has a right to seek affirmative relief in the
courts, but if in the course of her action she is faced with
the prospect of answering questions which might tend to
incriminate her, she must either answer those questions or
abandon her claim." Id. at 398, 427 S.E.2d at 131.
Furthermore, it is well established that North Carolina law
allows the trier of fact to infer guilt on a civil defendant
who, having the opportunity to refute damaging evidence
against her, chooses not to. The finder of fact in a civil cause
may use a witness' invocation of his Fifth Amendment
privilege against self-incrimination to infer that his
truthful testimony would have been unfavorable to him.
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BRYANT, J., dissenting
Fedoronko v. American Defender Life Ins. Co., 69 N.C. App.
655, 657–58, 318 S.E.2d 244, 246 (1984).
McKillop, 139 N.C. App. at 63–64 , 532 S.E.2d at 600–01.
[S]ince the power of the court over a witness in requiring
proper responses is inherent and necessary for the
furtherance of justice, it must be conceded that testimony
which is obviously false or evasive is equivalent to a refusal
to testify within the intent and meaning of the foregoing
statutes, and therefore punishable [by contempt].
Galyon v. Stutts, 241 N.C. 120, 124, 84 S.E.2d 822, 825 (1954).
In the instant case, the trial court understood that the purpose of the DVPO
hearing was to determine whether sufficient credible evidence existed to support
plaintiff’s claim that his wife was putting drugs in his food and sneaking out of the
house to have an affair with her paramour. The trial court had already heard the
paramour take the Fifth Amendment upon being asked a number of questions
regarding his relationship with defendant and whether she had shared certain
information with him regarding what she may have been doing to her husband.
However, unlike Defendant, the paramour was compelled to testify. See Brown, 356
U.S. at 155, 2 L. Ed. 2d at 597 (“A witness who is compelled to testify . . . has no
occasion to invoke the privilege against self-incrimination until testimony sought to
be elicited will in fact tend to incriminate.”)
And while defendant had the right to meet the evidence presented against her
by plaintiff with evidence of her own, defendant was not compelled to testify on her
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BRYANT, J., dissenting
own behalf. She did so voluntarily. Based on the initial question and response just
prior to her testimony, defendant could be said to have waived the privilege.
However, it was within the inherent power of the trial court to ascertain from
defendant that she chose to testify voluntarily and waive her privilege against self-
incrimination. Further, the trial court’s statement was sufficient to put defendant on
notice that if she intended to testify, the trial court expected defendant to answer
questions truthfully. Notwithstanding the less than artful phraseology, it was
ultimately up to the court to determine the scope of the privilege. See id. at 156, 2 L.
Ed. 2d at 597 (“The interests of the other party and regard for the function of courts
of justice to ascertain the truth become relevant, and prevail in the balance of
considerations determining the scope and limits of the privilege against self-
incrimination.”).
Upon hearing the trial court’s statement of warning, defendant could have
refused to testify, she was not compelled to do so. Instead, she took the stand and
testified. The court did not allow plaintiff to cross-examine defendant, but the trial
court asked questions of her. Throughout, defendant made no objection to the trial
court’s admonition and never asserted the privilege against self-incrimination.
Moreover, defendant does not claim and the record does not support that she
incriminated herself, or that she testified differently because of the trial court’s
comments. There is no indication from these facts that defendant’s Fifth Amendment
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rights were violated. Further, neither Brown, McKillop, nor any other case I have
found would support a holding that defendant’s Fifth Amendment right against self-
incrimination was violated in this case.
If allowed to stand, the majority opinion would grant a defendant the right to
use a constitutional privilege, intended as a shield to protect a litigant, to be used as
a sword to strike down the inherent authority of the court to oversee the proper
conduct of trials. Accordingly, as I see no facts or law as espoused by the majority
that amount to a violation of defendant’s constitutional right against self-
incrimination, I respectfully dissent.
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