Lionti v. Lloyd's Insurance

STERN, District Judge,

dissenting.

Whether there is evidential value in a non-party witness’s invocation of fifth amendment privilege in a civil case is an issue no court of appeals has ever squarely addressed. Today the majority makes a muscular attempt to avoid being the first to speak. Despite its insistence on non-decision, however, the majority implicitly answers the question affirmatively. I am therefore unable to join its decision.

The trial court ruled that McLane’s assertion of fifth amendment privilege was proper, and then permitted the insurance company to call Miller, its own agent, as a collateral witness for the sole purpose of “impeaching” McLane’s invocation of privilege.¹ Counsel for the insurance company readily admitted at oral argument that Miller was called in order to impeach McLane’s refusal to testify, and the majority notes that Miller’s testimony was offered “not for the truth of the matter asserted, but for the fact that McLane made [the statements] and that they were inconsistent with McLane’s subsequent assertion of the fifth amendment privilege.”² Maj. op. at 241.

A few days later, the trial court reversed itself in its charge to the jury, and instructed that the assertion of the fifth amendment has no evidential worth. See Maj. op. at 243 n. 9. In spite of the fact that the trial court thus made rulings flatly inconsistent with each other as to the evidential content of the invocation of the fifth amendment, the majority insists that it is not necessary to resolve this confusion. Instead, the majority professes to limit its holding by stating that it is not ruling on the fifth amendment evidential question, but only on the error produced by allowing portions of Miller’s testimony on a basis inconsistent with subsequent jury instructions.

There can be no dispute that the trial court either committed error in originally permitting the inference and its rebuttal, or that it committed error in ruling in its final instruction that no inference can be drawn. It cannot be right as to each. The majority’s refusal to say which is correct authorizes both, and hereafter leaves to the trial court’s discretion the decision whether or not to allow an inference to be taken from a non-party witness’s invocation of fifth amendment privilege.³ In my view, this is grave error for two reasons: it transposes the determination as to the propriety of invoking privilege from judge to jury, and it imparts evidential value to the assertion of the fifth amendment.

In general, the invocation of the fifth amendment privilege is without evidential content. Certainly in the criminal setting this is so, where it is understood that,

The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann [v. United States, 350 U.S. 422, 426-29, 76 S.Ct. 497, 500-01, 100 L.Ed. 511 (1956) ], a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.

Slochower v. Board of Higher Education, 350 U.S. 551, 557-58, 76 S.Ct. 637, 640-41, 100 L.Ed. 692 (1956) (citing Griswold, The Fifth Amendment Today (1955)). Accord Grunewald v. United States, 353 U.S. 391, 421, 77 S.Ct. 963, 982, 1 L.Ed.2d 931 (1957). This follows from the fact that in order to invoke the privilege it is only necessary that from the question alone it is not possible to say that an answer would not incriminate or even furnish a “link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951) (citing Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950)). Accord United States v. Lowell, 649 F.2d 950, 963-64 (3d Cir.1981) (citing United States v. Burr, 25 F.Cas. 38 (C.C.D.Va.1807) (No. 14,692e) (Marshall, C.J.), where “link in the chain” test first announced); United States v. Coffey, 198 F.2d 438, 440 (3d Cir.1952). Since the judge must determine the propriety of the invocation from the question alone, it is impossible to make meaningful inferences from the invocation of this privilege. The judge must act blindly; he may not speculate or infer what the actual answer is. His ruling permitting the refusal to testify cannot authorize a jury to infer what the answer might have been. In the setting of a courtroom, a witness may have many reasons for refusing to give testimony. Under the fifth amendment test, once a witness invokes privilege it is nigh to impossible to determine why he has done so, or to overrule his refusal. Just as courts can never be comfortable that in upholding the invocation they truly vindicate the privilege, juries are left with nothing but rank speculation in attempting to draw inferences from such an event.

In only one limited context have courts accorded the refusal to testify with evidential import: the invocation of the fifth amendment by parties in civil litigation. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1557, 47 L.Ed.2d 810 (1976).⁴ The reasoning behind this exception, although less than satisfying, would appear to be that this is a necessary toll exacted from civil litigants who might otherwise use the privilege as a weapon against the opposing side. Allowing inferences to be drawn from a party’s invocation of the fifth amendment is, in this view, a transaction cost of litigation whose potential harshness is mitigated by the ability of a party, through counsel, to explain and control the contours of his invocation. See, e.g., Heidt, The Conjurer’s Circle: The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062 (1982); Note, Plaintiff as Deponent: Invoking the Fifth Amendment, 48 U.Chi.L. Rev. 158 (1981); Daskal, Assertion of the Constitutional Privilege Against Self-Incrimination in Federal Civil Litigation: Rights and Remedies, 64 Marq.L.Rev. 243 (1980); Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation: A Critical Analysis, 39 Brooklyn L.Rev. 121 (1972); Ratner, supra at 245 n. 4.⁵

To the extent that these concerns exist where parties are involved, none are implicated when a mere witness, with no stake in the matter, invokes privilege. Provided that such behavior is not the responsibility of either party, it does not work any unfairness which requires penalization. To the contrary, it is by allowing inferences from a witness’s refusal to testify that one party will be harmed, and in a manner that is beyond his power to control. While a party may be able to deflect the damage of adverse inferences taken from his own invocation through, for example, rehabilitating examination by his counsel, he is unable to defend against an adverse inference drawn against a witness which in turn harms his own case.

If we extend Baxter to include civil witnesses, we thereby approve of trial tactics I had until today thought impermissible. If the invocation of the fifth amendment is an evidential event, nothing prevents a civil party, or for that matter a criminal defendant, from calling a witness to the stand, with the sole and express purpose of having the jury hear the witness invoke a fifth amendment privilege and draw an inference. This practice has been condemned, however, with respect to calling of witnesses by criminal defendants, see, e.g., United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.) (quoting United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973)), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974); Bowles v. United States, 439 F.2d 536, 542 (D.C.Cir.1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971), and I see no distinction as applied to civil parties. See also American Bar Association Project on Standards for Criminal Justice, Standard 4^7.6(c) (a lawyer should not call a witness who he knows will claim a valid privilege not to testify). Moreover, in certain instances such as that before us, the majority’s implicit holding would permit the jury, rather than the judge, to determine the propriety of the invocation itself. In this case, for example, the trial court initially— and erroneously — considered that the jury could legally draw an inference that McLane had set the fire from McLane’s invocation of privilege. Then, in permitting the defense to negate this inference with Miller’s testimony, the court allowed the jury to retry the issue of the propriety of the invocation itself. It thus shifted the final responsibility for determining the propriety of the invocation from court to jury. There can be no doubt that this displacement of functions is impermissible. What the court should have done when McLane refused to answer was immediately to give the instruction it reserved for the end: that the jury should disregard McLane’s invocation because it possessed no evidential worth.

The trial court’s decision to admit Miller’s testimony, inconsistent with its own belated instruction as well as articulate fifth amendment analysis, was error. Had the majority admitted the source of this error, but held that error harmless, there would be no occasion for disagreement. But an appellate holding that invites future juries to weigh the evidential worth of fifth amendment invocations, and that authorizes future advocates to call witnesses for the value in their refusals to testify, compels this dissent.

1 .The court ruled that impeachment of McLane was proper in order to “negative! ] the unfavorable inference [McLane] may have created by his refusal to testify,” App. at 54, and stated that “the only purpose of [Miller’s] testimony is to impeach any inference that might have been drawn from Mr. McLane’s testimony.” App. at 86-87. It should also be emphasized that the circumstances leading to the invocation from which the allowed inference was drawn were entirely of defendant’s creation. Very early in his direct examination, in response to a question concerning only a conversation between Gina Lionti and him, McLane invoked a fifth amendment privilege. Defendant’s counsel, on notice that McLane was asserting a privilege, persisted nonetheless with his questioning, taking, in his own words, “a calculated risk.” The ultimate result of this gamble was that defendant was able to introduce otherwise inadmissible testimony, highly damaging to plaintiff, which, rather than “impeaching” of McLane’s invocation of the fifth amendment, vindicated its propriety.

2 . While it is true that McLane did answer a few questions, it is plain that none of these responses were in any way harmful to the insurance company, thus confirming that the only purposes for allowing Miller to testify was to impeach what the trial court initially believed was a permissible negative inference to be drawn from McLane’s invocation of the fifth amendment.

3 . The majority’s conclusion that portions of Miller’s testimony were admissible, see Maj. op. at 244, further reveals its implicit holding, for as discussed earlier, the sole purpose of Miller’s entire testimony was to impeach McLane’s invocation of the fifth amendment. Unless this impeachment is proper, all of Miller’s testimony was erroneously admitted.

4 . Baxter does not refer to non-party witnesses in civil actions, and the sole authority cited by the Court in authorizing inferences as to parties explicitly states that inferences are not to be taken from a witness’s assertion of fifth amendment privilege. 8 Wigmore, Evidence § 2272, at 437 (McNaughton rev. 1961). Commentators have ratified Wigmore’s distinction between the invocation of fifth amendment privilege by a witness as opposed to a party, see, e.g., Morrison, Commentary: Availability of Fifth Amendment Privilege Against Self-Incrimination and the Permissibility of Drawing Adverse Inferences: Alternative Perspectives, 48 A.B.A. Antitrust L.J. 1421 (1980); Moxham, A Comment Upon the Effect of Exercise of One’s Fifth Amendment Privilege in Civil Litigation, 12 New Eng.L.Rev. 265 (1976); Note, Use of the Privilege Against Self-Incrimination in Civil Litigation, 52 Va.L.Rev. 322 (1966); Ratner, Consequences of Exercising the Privilege Against Self-Incrimination, 25 U.Chi.L. Rev. 472 (1957), and I am aware of no other appellate court that before today has extended Baxter’s ruling to include witnesses. While several district court opinions indicate that inferences may be drawn from a witness’s invocation of the fifth amendment, e.g., Brink's, Inc. v. City of New York, 539 F.Supp. 1139, 1141-42 (S.D.N.Y.1982); E.H. Boerth Co. v. LAD Properties, 82 F.R.D. 635, 644-45 (D.Minn.1979); Poplar Grove Planting and Refining Co. v. Bache Haisey Stuart Inc., 465 F.Supp. 585, 591 (M.D.La.1979), to the extent that these decisions simply extend to witnesses prevailing rules concerning civil parties, without further analysis, they are subject to the same criticism I offer with respect to the majority opinion today.

5 . This reasoning, allowing a distinction to be drawn between criminal and civil cases, is far from compelling, and I would reject this schizophrenic approach. See Proposed Rule 513, Fed.R.Evid., 56 F.R.D. 183, 260 (1973) (no inference to be drawn from invocation of privilege) (rejected by Congress on unrelated grounds, see 2 Weinstein’s Evidence § 501 [01] [ — 02] (1981)). Even Baxter’s sole authority suggests that the cases establishing the allowance of an inference from a party in a civil matter are “confused.” 8 Wigmore, Evidence § 2272, at 437 & n. 9 (McNaughton rev. 1961). If institutional concerns exist in the civil context incon-gruent with the assertion of the privilege by parties, it would seem that other corrective measures exist which do not create analytic distortion. It makes as much sense to charge a party $5 for each invocation by him as to charge him with an adverse inference on each occasion. If the object is merely to make the invocation costly, or to recompense the adversary, then a toll is as intellectually gratifying as an unreasonable inference. On the other hand, it does make sense, for example, to prohibit direct testimony from a party unwilling to answer relevant questions on cross examination. That approach is not designed to be a penalty, but prevents the fifth amendment from being used for unfair advantage.

That Baxter’s holding is troublesome is further evidenced by the Court’s distinguishing of Baxter from Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and the line of cases that follows. The latter cases bar the imposition of sanctions where the only basis for penalization is the invocation of fifth amendment privilege in the absence of other evidence. In their allowance of inferences to be drawn against civil parties, I read Baxter and Lefkowitz v. Cunningham, 431 U.S. 801, 808 n. 5, 97 S.Ct. 2132, 2137 n. 5, 53 L.Ed.2d 1 (1977), to say that such inferences, while clearly costly, are acceptable until they become too costly. I remain unconvinced that the fifth amendment tolerates such flimsy construction.